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Public Defense Backup CenterREPORTiVolume XXIV Number 2 March–May 2009
N e w Y o r k S t a t e D e f e n d e r s A s s o c i a t i o n
Rockefeller Drug Reform BecomesReality in 2009–2010 State Budget
New York State’s 2009–2010 budget included historicchanges to the Rockefeller Drug Laws. After much nego-tiation, the Legislature passed the bill and delivered it toGovernor Paterson, who signed it into law on April 7. Thefull text of Chapter 56 is available at http://assembly.state.ny.us/leg/?bn=A00156&sh=t; the majority of theRockefeller reforms appear in Part AAA of the law.Judicial discretion is the highlight of the newly-enactedsentencing laws for first and second (non-violent) felonydrug offenses. For example, judges no longer are requiredto sentence class B first felony offenders to imprisonment.Judges also have the authority to direct placement in theSHOCK incarceration program and judges no longerneed DA consent to sentence a defendant to Willardparole supervision. As of October 7, 2009, judges will beable to divert many drug and marijuana offenders withidentified alcohol or substance abuse problems to treat-ment. The reforms also authorize resentencing of inmateswho were convicted of Class B drug offenses committedprior to January 13, 2005 and sentenced to indeterminateterms under the old sentencing law with maximum termsof more than 3 years, and conditional sealing of recordsupon successful completion of judicial diversion or simi-lar drug treatment program. For a detailed review of the
Rockefeller reforms, see Staff Attorney Al O’Connor’sarticle beginning on page 10, the Center for CommunityAlternatives’ 2009 Rockefeller Drug Law Reform Sen-tencing Chart (p. 13), and CCA’s early release checklists(pp. 14–15). For additional materials on these reforms,including memoranda from the Office of Court Adminis-tration and the New York State Department of Correc-tional Services, please contact the Backup Center.
Sentencing Project Releases Report onCurrent State of Drug Courts in the US
In April 2009, the Sentencing Project released itsreport, Drug Courts: A Review of the Evidence, which isavailable at http://tinyurl.com/ppdjmx. The reportreviews a number of recent studies that address recidi-vism rates, cost savings, the effect of sanctions to ensureprogram compliance, the role of judges in drug courts,treatment provided to participants, and the impact on theprison population. The authors note that drug court stud-ies have not analyzed how the type of treatment receivedimpacts the rate of success and they expressed concernabout whether drug courts have increased the number ofpeople arrested for drug crimes. Recommendations forfuture research include uniform tracking of participants’criminal histories, the effects of a pre-plea versus a post-plea model and the use of sanctions, and recording ofdemographics for graduates along with the rates of recidi-vism in the years that follow graduation.
Other LegislativeChanges in the2009-2010 Budget
In addition to theRockefeller reforms, thebudget brought a numberof other changes relatedto criminal proceedings,early release, and publicdefense, including:
Defender News
Defender News.................... 1Conferences & Seminars ...... 9Legislative Review.............. 10Job Opportunities .............. 16Case Digest:
US Supreme Court.......... 17NY Court of Appeals....... 20First Department ............ 21Second Department........ 27
A P U B L I C A T I O N O F T H E D E F E N D E R I N S T I T U T E
ContentsNYSDA’s 42nd
Annual Meetingwill be held in Saratoga Springs,NY at the Gideon Putnam Resort
July 26-28, 2009Hotel reservations can be made by phone:
1-866-890-1171
• The SHOCK program has been expanded to inmatesunder 50; otherwise eligible inmates may be selectedfor SHOCK participation while in a general confine-ment facility once they are within three years ofparole or conditional release eligibility; and judgesmay sentence defendants to the SHOCK program;
• Medical parole has been split into two statutory sec-tions, one for terminally ill inmates and the other forinmates suffering from significant debilitating ill-nesses;
• Counties are authorized to create local conditionalrelease commissions;
• A limited credit time allowance of six months isauthorized for individuals serving a determinate orindeterminate sentence for a violent felony offense(sex offenses excluded), homicide (first-degree mur-der excluded), or A-1 non-drug offense who havesignificant programmatic accomplishments;
• Defendants who successfully serve interim proba-tion may have that period deducted from a subse-quently imposed probation sentence;
• The Division of Parole is urged to consider imple-menting graduated sanctions for parole violations;and
• The Chief Administrative Judge must develop case-load standards for attorneys providing public crimi-nal defense representation in New York City, with afour-year phased plan for implementation beginningon April 1, 2010.
Attorneys who would like more information aboutlegislative changes in the 2009-2010 budget should contactthe Backup Center.
Legislature Again Provides TemporaryIndigent Legal Services Fund Fix
This year, five counties were at risk of losing IndigentLegal Services Fund money: Delaware, Herkimer, Nassau,Otsego, and Wayne. To ensure that these counties receivedILSF funding, the Legislature enacted a one-time amend-ment to the MOE that, like last year, allowed counties touse a three-year averaging test to demonstrate compli-ance. See L 2009, ch 9. The bill also provided reducedfunding for noncompliant counties. Nassau County wasable to meet the averaging test, and thus received all of itsILSF funds. The remaining four counties received reducedfunding.
Before the bill was passed, NYSDA released a reportanalyzing the Indigent Legal Services Fund Maintenance
of Effort Provisions. (www.nysda.org/MOE_Analysis_Mar09.pdf.) The report concluded that the administrationof the ILSF has provided no information on how funds arespent, little information on whether localities are main-taining, much less improving quality, and little to no evi-dence that the provisions are sufficient to guarantee thatthe state money is used to improve quality, as is statutori-ly required. Instead of piecemeal efforts to fix the ILSF,NYSDA urges the state to overhaul the entire publicdefense system by establishing an Independent PublicDefense Commission.
Loan Forgiveness Program For PublicDefenders and Legal Aid Attorneys
The state loan forgiveness program previouslyrestricted to district attorneys has been expanded toinclude public defenders and legal aid society attorneyswho meet several eligibility criteria. Applications must besubmitted by October 1, 2009, and the application pack-age will be available on the Higher Education ServicesCorporation website in August. For more informationabout the loan forgiveness program, please contact StaffAttorney Susan Bryant at the Backup Center.
New York Court of Appeals Rules thatWarrant is Required for GPS Monitoring
The New York State Court of Appeals recently heldthat: “Under our State Constitution, in the absence of exi-gent circumstances, the installation and use of a GPSdevice to monitor an individual’s whereabouts requires a
2 | Public Defense Backup Center REPORT Volume XXIV Number 2
Public Defense Backup Center REPORTA P U B L I CAT I O N O F T H E D E F E N D E R I N S T I T U T Ei
Volume XXIV Number 2 March–May 2009
Managing Editor Charles F. O’Brien,Editor Susan C. Bryant,Contributors Stephanie Batcheller, Mardi Crawford,
Al O’Connor, Ken Strutin,
The REPORT is published ten times a year by the PublicDefense Backup Center of the New York State DefendersAssociation, Inc., 194 Washington Avenue, Suite 500, Albany,NY 12210-2314; Phone 518-465-3524; Fax 518-465-3249.Our Web address is http://www.nysda.org. All rights re-served. This publication is designed to provide accurate andauthoritative information in regard to the subject matter cov-ered. It is distributed with the understanding that its contentsdo not constitute the rendering of legal or other professionalservices. All submissions pertinent to public defense work inNew York State and nationwide are welcome.
T H E R E P O R T I S P R I N T E D O N R E C Y C L E D P A P E R
Defender News continued
warrant supported by probable cause.” People v Weaver,No. 53, 5/12/2009. In Weaver, the prosecution sought tointroduce evidence of GPS readings taken from a battery-powered GPS device that was attached to the defendant’svan without a warrant; the device remained in place for 65days. Chief Judge Lippman, writing for the majority,found that “[t]he massive invasion of privacy entailed bythe prolonged use of the GPS device was inconsistentwith even the slightest reasonable expectation of privacy.”The Court declined to decide the issue on federal consti-tutional grounds.
Judge Smith, joined by Judges Read and Graffeo, dis-sented, concluding that although the attachment of theGPS device violated the defendant’s property rights, it didnot invade his privacy, and thus, there was no search.Judge Smith argued that the state and federal constitu-tional prohibitions against unreasonable searches shouldbe enforced not by limiting the technology the police mayuse, but by limiting the places and things that the policemay observe with it. In a separate dissent, Judge Readconcluded that “federal and New York precedents do nottransmute GPS-assisted monitoring for information thatcould have been easily gotten by traditional physical sur-veillance into a constitutionally prohibited search” andargued that the issue was best left to the Legislature. A fullsummary of the decision will appear in the next issue ofthe REPORT.
Supreme Court Limits Warrantless AutoSearch Incident to Arrest
In a 5-4 decision, the United States Supreme Courtheld that “[p]olice may search a vehicle incident to arecent occupant’s arrest only if the arrestee is withinreaching distance of the passenger compartment at thetime of the search or it is reasonable to believe the vehiclecontains evidence of the offense of arrest.” Arizona v Gant,No. 07-542 (4/21/2009). If neither category applies, thepolice must get a search warrant or rely on another excep-tion to the warrant requirement to justify the search.Justice Stevens, writing for the majority, noted that manycourts have interpreted New York v Belton (453 US 454[1981]) to mean that such a search is authorized even ifthere is no possibility that the person arrested could gainaccess to the vehicle during the search. The Gant Courtrejected that interpretation and concluded that the“Chimel [v California (395 US 752 [1969])] rationale author-izes police to search a vehicle incident to a recent occu-pant’s arrest only when the arrestee is unsecured andwithin reaching distance of the passenger compartment atthe time of the search.”
In a brief dissent, Justice Breyer argued that principlesof stare decisis require the Court to follow the rule set outin Belton. In his dissent, Justice Alito agreed that the Court
should continue to follow Belton and argued that overrul-ing Belton “will cause the suppression of evidence gath-ered in many searches carried out in good-faith relianceon well-settled case law.”
Reports and Studies on System Failures;Advocacy and Action Needed toImplement Recommended Reforms
The first five months of 2009 featured several stateand national studies and reports on serious failings with-in the criminal justice and family court systems, such asconstitutional violations in public defense, the lack ofscience in forensic sciences, unnecessarily restrictive dis-covery rules, and wrongful convictions. These reports allprovide recommendations for reducing wrongful convic-tions, providing zealous, well-trained advocates for pub-lic defense clients, and creating a better-functioning system.But the implementation of these and other recommenda-tions has been slow and the system continues to fail allthose involved.
Justice Denied—The Constitution Project ShinesSpotlight on the Nationwide Neglect of theConstitutional Right to Counsel
Last month, the National Right to Counsel Committeeof the Constitution Project released its report on the con-tinuing failure of states and localities to provide constitu-tionally-required competent counsel (available athttp://tcpjusticedenied.org). “It is no longer news thatGideon’s constitutional promise has not been fulfilled inmany states and counties around the country. But theextent and persistence of the problems are greater than werealized.” The report includes various examples of inade-quate funding of public defense, resulting in unacceptablelevels of staffing, supervision, salaries, training, and over-sight. After providing various examples of failures in pub-lic defense systems throughout the country, the committeeset out twenty-two recommendations for reform. The rec-ommendations include: the creation of independent, non-partisan public defense systems, organized at the statelevel, adequately funded by the state from general rev-enues, and overseen by a board or commission; federalgovernment assistance in the delivery of public defenseservices; prompt assignment of counsel and eligibilitydeterminations made by individuals independent ofdefense agencies; establishment and enforcement of qual-ifications and standards for representation and workloadlimits; fair compensation and adequate support andresources; and compliance with ethical standards.
March–May 2009 Public Defense Backup Center REPORT | 3
NYSBA Wrongful Conviction Report Approved;Chief Judge Lippman Creates New WrongfulConviction Task Force
The New York State Bar Association’s House ofDelegates voted to approve the report issued earlier thisyear by the Association’s Wrongful Conviction Task Force.(www.law.com, 4/7/2009.) The final report, available athttp://tinyurl.com/qvvk66, includes a significant recom-mendation that was not in its preliminary report: “TheTask Force endorses the recommendations of the Reportof the Commission on the Future of Indigent Services,June 2006, specifically including the recommendation ofan Independent Public Defense Commission to overseethe quality and delivery of public defense services.”Information about the other task force recommendationsappears in the January-February 2009 issue of theREPORT. (http://www.nysda.org/09_Jan-FebREPORT.pdf.)
Chief Judge Lippman has announced the creation of apermanent wrongful conviction task force, which willbuild on the work of the Innocence Project and the NewYork State Bar Association’s wrongful conviction taskforce. The task force will be chaired by Court of AppealsAssociate Judge Theodore T. Jones, Jr. and WestchesterCounty District Attorney Janet DiFiore. Three others,Senate Codes Committee Chair Eric T. Schneiderman,Assembly Codes Committee Chair Joseph R. Lentol, andDenise O’Donnell, Deputy Secretary of PublicSafety/Commissioner of the State Division of CriminalJustice Services, have been named to the task force, whichis expected to have a total of 12 members. The task forcewill review cases where wrongful convictions haveoccurred to determine where the system failed; the panelwill not investigate claims of innocence. An initial reportis due on December 1. (www.law.com, 5/1/2009.)
The Fund for Modern Courts Declares NewYork’s Family Courts in Crisis
In a recently released report, A Call to Action: The Crisisin Family Court, the Fund for Modern Courts’ FamilyCourt Task Force examined the current state of New YorkState’s Family Court system and provided recommenda-tions for addressing some of the system’s major problems.(www.moderncourts.org/documents/family_court_report.pdf.) The Task Force acknowledged that additionalchanges are necessary; specifically, the number of FamilyCourt judges must be increased and the court systemmust be restructured through a constitutional amendmentsuch as the one proposed by the Special Commission onthe Future of the Courts in 2007. The report is based oninterviews with 35 individuals who have been involved inthe Family Court system, and focuses on the followingareas: administrative leadership; allocation of judicialresources; courtroom control and case management; judi-
cial education and support; resources for litigants; andtechnology solutions.
Recommendations to improve court administrationinclude creating a statewide Deputy Chief AdministrativeJudge for Family Court, mandating annual review ofadministrative and supervisory judges, and creating anadvisory or review board of Family Court stakeholders tooffer advice and guidance to the Deputy Chief. To dealwith the pressing need for additional family court judges,the Task Force recommended reassignment of judges fromother courts to the Family Court, assigning more func-tions and matters that do not involve issues of family vio-lence to referees and judicial hearing officers, and sup-porting the increased use of Alternative DisputeResolution. To reduce delays and scheduling problems,the Task Force recommended that judges be assigned toconduct preliminary discussions with litigants in an effortto settle disputes or streamline the issues for judicial reso-lution, establish standards and guidelines to inform allparties in advance of a court appearance what proceedingis scheduled to take place, and implement a zoneapproach to allow Family Court stakeholders to familiar-ize themselves with an identifiable set of colleagues andlimit the number of judges before whom they mustappear. Judicial education recommendations includemore mandatory judicial training for new and experi-enced judges and other courtroom personnel and cross-training with other participants in the system. Noting thesignificant number of pro se litigants and the need foradditional resources to permit these litigants to fully pro-tect their rights and obtain substantial justice, the TaskForce recommended creating self help centers in eachcounty and instruction guides on preparing court submis-sions, devoting resources to recruiting, supporting, andcollaborating with a dedicated pro bono counsel plan, andre-evaluating the mechanisms for selecting and assigningassigned counsel to cases. Finally, the Task Force recom-mended that the Office of Court Administration designand implement a comprehensive data-collection systemfor Family Court cases.
Soon after the report was released, Chief JudgeLippman and Chief Administrative Judge Ann Pfauannounced new family court administrative appoint-ments. (www.nycourts.gov/press/pr2009_07.shtml.)Hon. Sharon Townsend has been named Vice Dean forFamily and Matrimonial Law of the New York StateJudicial Institute, a new administrative position. JudgeTownsend will coordinate training for judges who handlefamily court and matrimonial cases and will also provideadvice, mentoring, and support to those judges. Hon.Edwina Richardson-Mendelson has been named theAdministrative Judge of the New York City Family Court.
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Defender News continued
Legal Aid Society Releases Recommendations onCriminal Discovery Reform
In April, the Legal Aid Society released its report,Criminal Discovery Reform in New York: A Proposal to RepealC.P.L. Article 240 and to Enact a New C.P.L. Article 245.(www.legal-aid.org.) This detailed report argues that NewYork’s criminal discovery laws are severely inadequateand proposes a new statutory framework for criminal dis-covery, Criminal Procedure Law article 245. In its pressrelease, the Legal Aid Society emphasizes that “becausesignificant discovery from the prosecution occurs so belat-edly—and critical materials like police reports that areroutinely provided in other states are not ordinarily dis-closed—New York’s discovery rules systematically blockinnocent or over-charged defendants from meaningfullyinvestigating the case; locating and using exculpatory evi-dence; and formulating a proper strategy of defense priorto the trial.” According to the report, New York has beenidentified as one of fourteen states that provide criminaldefendants with the least amount of discovery.
The proposed article 245 attempts to make the dis-covery process more efficient, fair, and consistent byrequiring early and broad disclosure. Specific reformsinclude: requiring prosecutors to disclose all known infor-mation that tends to mitigate or negate the defendant’sguilt; mandatory and automatic discovery, thereby elimi-nating written discovery demands; disclosure of witness-es’ contact information, unless a showing of good cause towithhold it is made and the court issues a protectiveorder; and disclosure of expert witness information.Article 245 would also require defendants to provide earlydisclosure of information that the defense plans to use attrial in presenting the defense.
Misdemeanor Courts Throughout the Countryare Broken
The National Association of Criminal DefenseLawyers’ report, Minor Crimes, Massive Waste: The TerribleToll of America’s Broken Misdemeanor Courts, (www.nacdl.org/misdemeanor), offers a comprehensive review ofnation’s misdemeanor courts. The report is based on sitevisits in seven states, a review of existing studies andmaterials, a survey of defenders, two conferences, and awebinar. Many of the problems with misdemeanor courtsoccur at the beginning of the case: absence of defensecounsel, particularly at the first appearance; uninformedwaivers of counsel; restrictive eligibility rules; pressure toplead at the first appearance; and requiring or encourag-ing defendants to confer directly with the prosecution.The report notes that misdemeanor caseloads in manyjurisdictions far exceed the maximum national caseloadstandard, with some caseloads so high that defendershave just minutes to spend on each case. And many ofthose defenders are inexperienced, unsupervised, and
lack access to necessary support services.The report includes numerous recommendations,
including: decriminalizing offenses that do not involve asignificant risk to public safety and expanding diversionprograms; providing counsel at the first court appearancefor any defendant facing the possibility of incarceration;reducing pressure on defendants to plead guilty, particu-larly at the first court appearance; establishing and enforc-ing caseload and practice standards; providing adequatefunding for public defense counsel and support services;eliminating flat-fee contracts for public defense represen-tation and application fees; and requiring judges andprosecutors to comply with ethical obligations.
As a modern aside, the problem of uninformed waiv-er of not only counsel but everything else was recentlymentioned on the Facebook page of the Maine IndigentDefense Center: “Saw a judge ask a defendant if he‘waived his right to be informed of his rights’!!!!” TheMaine Indigent Defense Center page is one good sourcefor public defense news for Facebook users.
Campaign for an Independent PublicDefense Commission Hosts VibrantGideon Day
This year, the Campaign for an Independent PublicDefense Commission (CIPDC) took Gideon Day to newheights. Holding its lobby day on the anniversary of theUS Supreme Court’s right-to-counsel decision in Gideon vWainwright on March 18, 1963, the Campaign providedbuses from Long Island, New York City, and Syracuse tobring supporters to Albany from across the state.Distinctive blue “Justice Now” tee shirts with the CIPDClogo—450 in all—were handed out as supporters arrived.Highly visible in halls, legislative offices, and the Well ofthe Legislative Office Building, the shirts reinforced theCampaign’s message all day as Campaign supportersbrought the message to their elected officials.
Activities in the Well also underscored the seriousnessof the public defense crisis and the growing passion forreform. Individuals with first-hand experience— lawyers,clients, and client families—told stories about New York’scurrent broken public defense system aloud on camera aspart of a Speak-Out. Passers-by and participants exam-ined a documentary exhibition—INNOCENT: InsideWrongful Conviction Cases in New York—by ScottChristianson, author of the book by the same name.
Key Legislators spoke at a press conference, callingfor IPDC now. They included: long-time supporterAssembly Codes Committee Chair Joseph R. Lentol (D-Brooklyn); Senate Codes Committee Chair Eric T.Schneiderman (D-Manhattan, Bronx); Assembly JudiciaryCommittee Chair Helene E. Weinstein (D-Brooklyn);Assembly Corrections Committee Chair Jeffrion L. Aubry
March–May 2009 Public Defense Backup Center REPORT | 5
(D-Queens); and Assemblymember Darryl C. Towns (D-Brooklyn) and Senate Corrections Chair Ruth Hassell-Thompson (D-Bronx, Westchester)—the chair and secre-tary respectively of the Black, Puerto Rican, Hispanic, andAsian Legislative Caucus. The latter two had publishedan op-ed piece in the Albany Times Union two days beforecalling for the Independent Public Defense Commissionat the press conference.
While the Independent Public Defense Commissionwas not included in the 2009 state budget, the need forpublic defense reform remains high. The Campaign urgesall supporters to contact Governor Paterson and legisla-tive leaders urging the creation of the Independent PublicDefense Commission this session.
To see Gideon Day press conference clips and photosof the day’s activities, visit the Campaign’s website,www.newyorkjusticefund.org.
More Voices in the Chorus for ReformBefore and after Gideon Day, several op-eds and
columns appeared supporting creation of an IndependentPublic Defense Commission in addition to the Towns/Hassell-Thompson piece noted above.
One appeared in El Diario (New York City), written byRoberto Ramirez (president-elect of the Puerto Rican BarAssociation). Published on March 10, 2009 and entitled“El derecho a una defensa eficaz” [the right to an effectivedefense], the piece noted that the unfairness of the currentsystem falls disproportionately on minority defendants.Ramirez said, “[c]reating the Independent Public DefenseCommission will give meaning to the right of everydefendant to consult with a lawyer, as recognized 46 yearsago by the US Supreme Court in Gideon v Wainwright.”
Ten days after Gideon Day, Senator Antoine Thomp-son wrote in the Buffalo News: “For reasons of justice andfiscal prudence, we can’t turn back. . . . While county exec-utives are concerned that the state will simply raise stan-dards and leave local taxpayers to pick up the addedcosts, legislators are discussing capping county spending. . . .” More recently, on April 19, Albany County residentBarbara DeMille, a member of the Campaign for anIndependent Public Defense Commission, described pub-lic defense problems in an op-ed in the Daily Gazette(Schenectady). She ended her call for reform by saying:“As we in this country pride ourselves on living equitablyunder a rule of law, we need remind ourselves that thehealth of our democracy depends upon justice for all.”
Columnist Errol Louis wrote in the Daily News onMay 7, 2009: “New York desperately needs a politicallyindependent, properly funded public defender commis-sion - a statewide agency that would provide the fund-ing, training and enforceable legal standards currentlyabsent from so many . . . offices . . . . Justice demands thatwe stop looking away.” And on May 14, former New
York City Mayor David N. Dinkins wrote in the New YorkAmsterdam News, “As a lawyer, I know that a right is onlymeaningful if it can be exercised effectively. That is why Iam adding my voice to those calling on our state leadersto finally reform our broken system of public defenseservices . . .”
These and other opinion pieces and editorials can befound on the Campaign for an Independent PublicDefense Commission website, www.newyorkjustice-fund.org/editorials.htm.
Recent Responses to the NationalResearch Council’s Forensic ScienceReport
As reported in the January-February 2009 issue of theREPORT, the National Research Council released aground-breaking report on the serious deficiencies inforensic science, Strengthening Forensic Science in the UnitedStates: A Path Forward, in mid-February. The report hasreceived significant attention from the legal and scientificcommunities over the past three months.
On May 11, 2009, the National Law Journal publishedan article on how criminal defense attorneys are using thereport in trials, appeals, and post-conviction motions todiscredit forensic evidence and testimony. (www.law.com/jsp/article.jsp?id=1202430604696.) District attorneysfrom across the country have objected these efforts, argu-ing that the defense bar is trying to keep legitimate evi-dence out of the courtroom. It is too early to tell howjudges will respond to these arguments, but defense coun-sel should use the report and other research to challengethe admission of forensic science evidence and testimony.In a May 12 article, the New York Times reported on foren-sic scientists’ reactions to the report. (http://tinyurl.com/ra7xny.) The article, Plugging Holes in the Science ofForensics, also discusses ongoing scientific studies that areanalyzing the accuracy of some forensic science disci-plines and the impact of human error on forensic science.
On May 13, 2009, the United States House ofRepresentatives’ Judiciary Committee held a hearing onthe report; witnesses were: Peter Neufeld, co-director ofthe Innocence Project; Kenneth Melson; Acting Director ofthe Bureau of Alcohol, Tobacco, Firearms, and Explosives;Peter Marone, Director of the Virginia Department ofForensic Science; and John Hicks, Director of theNortheast Regional Forensic Institute. In his written testi-mony, Peter Neufeld noted: “Although the conventionalwisdom once stated that a sound defense and cross-exam-ination would enable courts to properly assess thestrength of forensic evidence, the NAS report unequivo-cally states and the post-conviction DNA exonerationcases clearly demonstrate that scientific understanding ofjudges, juries, defense lawyers and prosecutors is wholly
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Defender News continued
insufficient to substitute for true scientific evaluation andmethodology. It is beyond the capability of judges andjuries to accurately assess the minutiae of the fundamen-tals of science behind each of the various specific forensicassays in order to determine the truth in various cases,and it is an unfair and dangerous burden for us to placeon their shoulders.” A webcast of the hearing and the wit-nesses’ written statements are available at http://judici-ary.house.gov/hearings/hear_090513.html.
On the same day as the hearing, a group of scientists,legal experts, criminal justice reform advocates, academ-ics, law enforcement professionals, and forensic sciencepractitioners who recognize the need for fundamentalforensic science reforms launched the Just ScienceCoalition. (www.just-science.org.) The Coalition’s missionis to “advocate for the governmental framework and re-sources necessary to ensure that forensic sciences in theUnited States are valid and reliable, and that their use inthe criminal justice system promotes accurate justice: theprotection of the innocence and the identification of theguilty.” The Coalition’s website includes informationabout the National Research Council’s report, news sto-ries about forensic sciences, and the Coalition’s plan forreform.
NYSDA Staff Attorney Testifies atHearing on Jury Pool Diversity
On April 30, 2009, Staff Attorney Mardi Crawford tes-tified before the New York State Assembly Committees onJudiciary and Codes regarding proposed legislationaimed at improving diversity in the jury pool. She empha-sized that New York State should ensure poor people ajury of their peers and that, given the link between raceand poverty, such efforts would help ensure members ofracial minorities a jury of their peers. A bill introducedearlier this session, A.2374, seeks to expand the sourcelists from which prospective jurors are selected, requiremore frequent updating of the lists, and require therecording of demographic data on jury pool participation.The bill would mandate use of lists of individuals whoreceive workers compensation, the senior citizen rentincrease exemption, and telephone subscribers, whichwill likely increase the number of poor persons placed injury pools. In addition to reforms in A.2374, Mardiencouraged the Legislature to consider removing the life-time prohibition on jury service by someone who has beenconvicted of a felony, which appears in Judiciary Law510(3). Although individuals previously convicted of afelony who have received a Certificate of Relief from CivilDisabilities or a Certificate of Good Conduct may be qual-ified to serve as jurors, it is unclear how many potentialjurors avail themselves of this relief, and a statutoryamendment lifting the lifetime ban should be adopted.
A week after the Assembly hearing, the New York LawJournal published an article about individuals with priorfelony convictions improperly serving as jurors, whatjudges should do upon learning of a juror’s concealmentof his/her criminal history, and the effect of such serviceon criminal convictions. (www.law.com, 5/7/2009.) Thearticle encourages judges to ask prospective jurors morequestions about their criminal histories, includingwhether they have received a certificate of relief from dis-abilities or a certificate of good conduct, and invite jurorsto answer these types of sensitive questions in private.
New State Attorney Ethics Rules in Effectas of April 1
As a reminder, the new New York State AttorneyRules of Professional Conduct became effective on April1, 2009. The November-December 2008 issue of theREPORT contains details about the new rules and the fulltext of the rules is available at http://tinyurl.com/os3f7r.Michael S. Ross provided training on the impact of thenew rules on criminal defense practice at NYSDA’s 23rd
Annual Metropolitan Trainer; attorneys who would like acopy of the training materials should contact the BackupCenter.
NYSDA Offers Trainers Across New YorkIn late February, NYSDA held its 23rd Annual
Metropolitan Trainer at the New York University Schoolof Law. The all-day seminar included five sessions:Michael Ross discussed the impact of the new state rulesof professional conduct on criminal defense practice;Brendan Wells and Ken Strutin educated attendees aboutconducting investigations in a YouTube and MySpaceSociety; Nancy Ginsburg provided an overview of repre-senting adolescents in adult criminal court and offeredmany great practice tips; Tom Klein provided guidance onpreparing for and litigating Wade hearings; and EdwardNowak reviewed the Court of Appeals’ decisions fromthis term.
NYSDA’s Cutting Edge Criminal Defense seminarwas held in Binghamton in mid-April. The half-day pro-gram featured training on recent developments in evi-dence by Brian Shiffrin, creative discovery and investiga-tion by Don Thompson, how to position your client forthe earliest possible release by Patricia Warth, and ethicalissues surrounding preserving attorney-client privilege atthe cost of another’s innocence by Ken Strutin.
The Director of NYSDA’s new Criminal DefenseImmigration Project, Joanne Macri, has been providingtraining to defenders around the state about immigrationissues in criminal cases. Criminal defense attorneys whohave questions about immigration matters can reach
March–May 2009 Public Defense Backup Center REPORT | 7
Joanne by calling the Backup Center.Just days after Governor Paterson signed the
Rockefeller Drug Law reforms into law, staff Attorney AlO’Connor began training criminal defense counsel aboutthe changes. His expertise and active involvement in thedrafting of this year’s reforms make him the ideal lectur-er on this topic.
NYSDA will be holding its Basic Trial Skills Programfrom June 7-13; over 40 new attorneys will participate inthis year’s training. The 42nd Annual Meeting andConference will be held from July 26-28 at the GideonPutnam Resort in Saratoga Springs, NY. For more infor-mation about the Annual Meeting, see p. 9.
Award Nominations SoughtNominations are sought for two awards to be pre-
sented at NYSDA’s 42nd Annual Meeting and Confer-ence.
Kevin M. Andersen Memorial AwardKevin M. Andersen was a lifelong public defender.
Those who worked with him knew him to have the abili-ty to be angered to his core by injustice, the will to fightferociously for his client, and the compassion to grant theclient the dignity each deserved as a human being despitewhatever human frailties they might present. Followinghis death in 2004, the Genesee County Public DefendersOffice created the Kevin M. Andersen Memorial Award toremember and honor his dedication to public defensework. This award is presented to an attorney who hasbeen in practice less than fifteen years, practices in thearea of indigent defense, and exemplifies the sense of jus-tice, determination, and compassion that were Kevin’shallmarks. Nominations with supporting materialsshould be forwarded to the Genesee County PublicDefenders Office, One West Main Street, County Building,Batavia NY 14020.
Wilfred R. O’Connor AwardWilfred R. O’Connor was a founding member and
long-time President of the New York State DefendersAssociation. He served as a legal aid lawyer in Brooklynand Queens, as director of the Queens Legal Aid office, asa member of Legal Aid’s Attica Defense Team, as directorof the Prison Legal Assistants Program, and as presidentof NYSDA from 1978 to 1989. He went on to complete hiscareer as a judge in New York City. His beliefs were clear:every defendant, regardless of race, color, creed or eco-nomic status, deserves a day in court and zealous client-centered representation. The NYSDA Board of Directorscreated the Wilfred R. O’Connor Award to remember Billand honor his sustained commitment to the client-cen-tered representation of the poor. This award will be pre-
sented to an attorney who has been in practice fifteen ormore years, practices in the area of public defense, andexemplifies the client-centered sense of justice, persist-ence, and compassion that characterized Bill’s life.Nominations with supporting materials should be for-warded to the New York State Defenders Association, 194Washington Avenue, Suite 500, Albany, NY 12210-2314.
Minnesota Supreme Court GrantsDisclosure of Intoxilyzer 5000EN SourceCode
In State v Underdahl, (No. A07-2293, A07-2428,4/30/2009) the Minnesota Supreme Court held thatdefendant Brunner was entitled to disclosure of theIntoxilyzer 5000EN source code, but defendantUnderdahl was not entitled to disclosure. (www.lawli-brary.state.mn.us/archive/supct/0904/OPA072293-0430.pdf.) In his request for the source code, Brunnerprovided a memorandum and nine exhibits, which sup-ported his argument that analysis of the source code mayreveal deficiencies that could challenge the reliability ofthe machine and thus, relates to his guilt or innocence.However, because Underdahl failed to show how thesource code would help him to challenge the validity ofthe machine, he was not entitled to disclosure under statelaw. The Court concluded that the trial court did notabuse its discretion in concluding that the state had pos-session or control of the source code.
In a recent Second Department decision, People vRobinson, (53 AD3d 63 [2d Dept 2008]) the court held thatthe Intoxilyzer source code was discoverable under CPL240.20(1)(c) and (1)(k), but that the machine is presumedreliable because it appears on the Department of Health’slist of approved breath-testing instruments, the defendantfailed to offer evidence that would make it reasonablylikely that the source code contains material exculpatoryevidence unavailable from other sources, and the sourcecode was not the property of the state.
New Jersey Supreme Court AffirmsInvalidation of Local Sex OffenderResidency Restrictions
In a brief per curiam opinion, the New Jersey Su-preme Court affirmed an appellate court decision thatheld that two local sex offender residency laws were pre-empted by the state’s Megan’s Law, which was intendedto be exclusive in the field. The Supreme Court decision,G.H. v Township of Galloway, (No. A-64/35-08, 5/7/2009) isavailable at http://tinyurl.com/luteac. In a recent New
(continued on page 12)
8 | Public Defense Backup Center REPORT Volume XXIV Number 2
Defender News continued
March–May 2009 Public Defense Backup Center REPORT | 9
Conferences & Seminars
Sponsor: New York State Bar Association
Theme: Family Court Training for Attorneys Who Provide MandatedRepresentation
Date: June 11, 2009
Place: Albany, NY
Contact: NYSBA: tel (518) 463-3200, email [email protected],website www.nysba.org
Sponsor: National Criminal Defense College
Theme: Trial Practice Institute
Dates: July 12-25, 2009
Place: Macon, GA
Contact: NCDC: tel (478) 746-4151; fax (478) 743-0160; [email protected]; website www.ncdc.net
Sponsor: New York County Lawyers’ Association (NYCLA)
Theme: Confronting Ethical Issues in Criminal Practice
Date: July 24, 2009
Place: NYCLA, New York City
Contact: NYCLA: tel (212) 267-6646; website www.nycla.org
Sponsor: The Bryan R. Shechmeister Death Penalty College
Theme: Death Penalty College
Dates: July 25-30, 2009
Place: Santa Clara, CA
Contact: Santa Clara University School of Law (Ellen Kreitzberg): tel(408) 554-4724; email [email protected]; websitewww.scu.edu/law/dpc/index.cfm
Sponsor: New York State Defenders Association
Theme: 42nd Annual Meeting & Conference
Dates: July 26-28, 2009
Place: Saratoga Springs, NY
Contact: NYSDA: tel (518) 465-3524; fax (518) 465-3249;email [email protected]; website www.nysda.org
Sponsor: National Association of Criminal Defense Lawyers
Theme: 2009 Annual Meeting & Seminar: Bring a RevolutionHome! Trial Skills That Win
Dates: August 5-8, 2009
Place: Boston, MA
Contact: NACDL: tel (202) 872-8600 x230 (Akvile Athanason);email [email protected]; website www.nacdl.org/meet-ings
Sponsor: National Association of Criminal Defense Lawyers
Theme: DWI Means Defend With Ingenuity
Dates: October 8-10, 2009
Place: Las Vegas, NV
Contact: NACDL: tel (202) 872-8600 x236 (Gerald Lippert); [email protected]; website www.nacdl.org/meetings �
Key legislators call for a statewide Independent Public Defense Commission at the Gideon Day press conference. From left:Assemblymember Jeffrion L. Aubry, Senator Ruth Hassell-Thompson, Assemblymember Helene E. Weinstein, Assemblymember DarrylC. Towns, Assemblymember Joseph R. Lentol, Senator Eric T. Schneiderman, and Michael Whiteman, Chairman of the Committee foran Independent Public Defense Commission. (See story on p. 5.)
10 | Public Defense Backup Center REPORT Volume XXIV Number 2
Summary of the 2009 Rockefeller DrugLaw Reform Legislation
By Al O’Connor*
The Legislature has enacted historic revisions to theRockefeller Drug Laws as part of the 2009-2010 budget.Governor Paterson signed the law (Chap. 56) on April 7th.Many of the changes are effective immediately, and applyto pending cases where sentence was not pronouncedbefore April 7, 2009. Here is a summary of the highlightsof the reform legislation.
1. New Sentencing Laws for Drug Crimes(Effective immediately)
First Felony Drug & Marijuana Offenses
Class B: Imprisonment is no longer mandatory—Probation, a split sentence, a definite jail term, and a stateprison term between 1 and 9 years (with post-releasesupervision) are now authorized sentences. If imposing astate prison sentence, the court may order the defendantbe directly placed in the Willard drug treatment programas part of a sentence of parole supervision (see CPL§ 410.91). The court may also order the client directlyplaced in the SHOCK incarceration program. Note: a sep-arate section of the bill (Part L) increases the maximumage for SHOCK placement to 50 (from 40).
Class C, D and E: Imprisonment will continue to bediscretionary, not mandatory. All non-incarcerative dispo-sitions are authorized (e.g., probation, split sentences) andlocal jail terms. The sentencing court may order the clientdirectly placed in the SHOCK incarceration program. Thelegislation does not authorize a Willard parole supervi-sion sentence for these clients because courts have manyother sentencing options. (The Legislature has reservedWillard for first time Class B drug offenders, and certainsecond felony Class C, D and E offenders).
Second Felony Offenders (with non-violent priorfelony conviction)
Class B: Imprisonment is required unless the client isdiverted for drug or alcohol treatment pursuant to newsection 216 of the Criminal Procedure Law, which author-izes diversion in the court’s discretion (i.e., without D.A.consent) following an alcohol and substance abuse evalu-ation (see below). Although the judicial diversion optionwill be available for clients who committed crimes priorto the effective date of the legislation, it does not go intoeffect for six months. Therefore, adjournments will benecessary for current clients who wish to avail themselvesof the diversion option. Interim probation supervision isone way to secure the necessary adjournment. A separate
section of the bill (Part O) authorizes sentence credit fortime served on interim probation against a sentence ofprobation.
The minimum state prison sentence for Class B sec-ond felony drug offenders (with a prior non-violentfelony) is reduced to 2 years (from 3½). The maximum isunchanged at 12. Therefore, Class B second felony offend-ers (prior non-violent) who are not judicially diverted totreatment and are eligible for release within 3 years areSHOCK eligible, and may be directly placed in the pro-gram by the court provided they otherwise meet eligibil-ity requirements [age, no prior DOCS commitments, noexclusion convictions—see Corr. Law § 865(1)].
Class C, D and E: Imprisonment is not required—allnon-incarcerative dispositions are authorized, includingjudicial diversion pursuant to CPL § 216. In addition, Wil-lard placement (without DA consent), and judicialSHOCK placement are available sentencing options.
Rolling SHOCK admissions for longer sentences
A separate section of Chapter 56 (Part L) authorizesrolling admissions to SHOCK when otherwise eligibleinmates serving longer terms of imprisonment are within3 years of parole or conditional release eligibility. RollingSHOCK admission is also available by direct judicialplacement when a sentencing court, while imposing alonger sentence that precludes immediate SHOCK place-ment, directs DOCS to place the defendant in the programwhen he or she is within 3 years of conditional release eli-gibility.
Optional state prison sentences for second felonyoffenders (prior non-violent felony)
Class C: 1½ (reduced from 2) to 8 years — plus PRSClass D: 1½ to 4 years (unchanged) — plus PRSClass E: 1½–2 (unchanged) — plus PRS
Second Felony Offenders (with prior violent felony)
The ameliorative sentencing changes are unavailableto clients who are second felony offenders with a predi-cate violent felony conviction. They still face mandatoryimprisonment, and will continue to be governed by PenalLaw § 70.70(4):
Class B: 6–15 years — plus PRS (categorical ineligi-bility for SHOCK)
Class C: 3½–9 years — plus PRS Class D: 2½–4 ½ years — plus PRSClass E: 2–2½ years — plus PRS
SHOCK eligibility for certain Class C, D and E offens-es—including judicial placement—if the client otherwisemeets eligibility requirements—i.e., release eligible within3 years, no prior DOCS commitments, no exclusion con-victions—see Corr. Law § 865(1)
Legislative Review
* Al O’Connor is a Backup Center Staff Attorney.
2. DA consent eliminated for all Willard-eligible offenses(Effective immediately)
The bill repeals CPL § 410.91(4), which required D.A.consent to a Willard parole supervision sentence for cer-tain Class D felony convictions. It also expands this sen-tencing option to Class B first felony drug offenders, andsecond felony Class C, D, and E offenders (prior non-vio-lent).1 Without consent of the D.A., courts may sentenceclients convicted of the following crimes to Willard:
Criminal mischief in the second and third degreesGrand larceny in the fourth degree (P.L. § 155.30
except subdivisions 7 and 11)Grand larceny in the third degree (except firearms)Unauthorized use of a vehicle in the second degreeCriminal possession of a stolen property in the third
and fourth degrees (except firearms)Forgery in the second degreeCriminal possession of forged instrument in the sec-
ond degreeUnlawfully using slugs in the first degreeBurglary in the third degree
First time Class B drug offenders, and second felonyClass C, D and E drug & marijuana offenders (prior non-violent).
3. Judicial Diversion Program (Effective 6 months from date of enactment)
The centerpiece of the bill is authorization for a courtto divert most drug and marijuana offenders with anidentified alcohol or substance abuse problem to treat-ment. It provides that courts may divert drug offenders(Class B through E), including second felony drug offenders,to in-patient or out patient treatment programs in lieu ofprison without consent of the D.A. Courts may also orderjudicial diversion for clients charged with Willard eligiblecrimes (see CPL § 410.91).
Excluded from diversion eligibility are: 1) secondfelony drug offenders with predicate violent felonyoffense convictions; 2) clients with a conviction for a merittime ineligible offense within the preceding 10 years (gen-erally sex and homicide offenses, see Corr. Law § 803(1)(d)(ii); 3) clients with a Class A felony drug conviction with-in the preceding 10 years; 4) clients who have ever beenadjudicated a second violent felony offender or a persist-ent violent felony offender. Also ineligible for diversionare clients currently charged with a violent felony offense,or a merit time ineligible offense, for which imprisonmentis mandatory upon conviction, while such charge is pend-
ing. However, the court may order diversion in any of theabove situations with consent of the D.A.
After ordering and receiving an alcohol and substanceabuse evaluation, the court must make findings withrespect to whether:
a. the defendant is statutorily eligible for diversionb. the defendant has a history of alcohol or substance
abuse or dependence;c. such alcohol or substance abuse or dependence is a
contributing factor to the defendant’s criminalbehavior;
d. the defendant’s participation in judicial diversioncould effectively address such abuse or depend-ence; and
e. institutional confinement of the defendant is ormay not be necessary for the protection of thepublic.
Generally, a guilty plea will be required for judicialdiversion, but the court may, in exceptional circum-stances, where the plea is “likely to result in severe collat-eral consequences,” order diversion without a guilty plea,and may do so in any case with consent of the D.A. Thecourt will have a range of options upon the client’s suc-cessful completion of the diversion program, includingallowing the defendant to withdraw a guilty plea anddismissing the indictment, or substituting a misdemeanorconviction in lieu of the felony. The court will also have arange of options when a client is unsuccessful in thediversion program, including imposing a state prison sen-tence for the crime of conviction or a lesser offense. Thelegislation directs courts to consider that “persons whoultimately successfully complete a drug treatment regi-men sometimes relapse by not abstaining from alcohol orsubstance abuse” and to consider using a “system ofgraduated and appropriate responses or sanctions.”
4. Conditional sealing of records upon completion ofjudicial diversion or similar drug treatment program(Effective: 60 days from enactment)
The legislation authorizes courts to conditionally sealrecords of drug, marijuana and Willard-eligible non-drugcrimes (see CPL § 410.91) upon a defendant’s successfulcompletion of a judicial diversion program, DTAP or sim-ilar substance abuse treatment program. Sealing authoritywill also extend to up to three of the client’s prior misde-meanor drug or marijuana convictions. A new arrest for acrime will effectively unseal these records unless the crim-inal action terminates in the defendant’s favor pursuant toCPL § 160.50 or results in a non-criminal disposition pur-suant to CPL § 160.55.
1 Also excluded from Willard eligibility are clients with priorviolent felony convictions, whether or not qualifying as apredicate felony convictions, prior Class A felony convictions,and prior Class B non-drug convictions.
March–May 2009 Public Defense Backup Center REPORT | 11
York Law Journal article, State Preemption of Local Sex-Offender Residency Laws, NYSDA’s Al O’Connor discussedthe G.H. appellate court decision and the relevance of thecourt’s preemption analysis in New York. (www.law.com,11/24/2008.) Recent lower court decisions in New Yorkfinding that state law preempts local residency restric-tions and proposed state residency restriction legislationwere discussed in the January-February 2009 issue of theREPORT. (www.nysda.org/09_Jan-FebREPORT.pdf.)
NYS Division of Parole Offers ParoleeInformation Online
The New York State Division of Parole is now provid-ing information about parolees on its website,www.parole.state.ny.us. The “Lookup” feature is a data-base that includes all persons in New York currently onparole and those who have completed their supervisionperiods, except youthful offenders; approximately 323,000names are in the database. The database offers informa-tion on the crime of conviction, county of the crime, dateparole supervision started, status of the supervision, andcontact information for the individual’s parole officer.Users can search for parolees using a NYSID or DIN num-ber, name, or last name and date of birth. The database isupdated on a regular basis.
Primer on Mental Health Court ReleasedThe Council of State Governments Justice Center
recently released a new publication, Mental Health Courts:A Primer for Policymakers and Practitioners. (http://consen-susproject.org/mhcp/mhc-primer.pdf.) The Primer pro-vides an overview of mental health courts, including thetypes of individuals who participate in these courts, thegoals of the courts, and distinctions between mentalhealth courts and drug courts, presents issues that shouldbe considered in developing a mental health court, andidentifies resources available for such courts. As noted inthe Council’s 2005 publication, A Guide to Mental HealthCourt Design and Implementation, discussions aboutlaunching a mental health court and design of such acourt must include a number of key stakeholders, includ-ing defense counsel. (http://consensusproject.org/mhcp/Guide-MHC-Design.pdf.)
Another recent Justice Center publication, ImprovingResponses to People with Mental Illnesses: The EssentialElements of a Mental Health Court, lists 10 elements thatshould be considered before a mental health court is estab-lished. (http://consensusproject.org/mhcp/essential.ele-ments.pdf.) This publication notes that “[d]efense attor-neys play an integral role in helping to ensure that defen-dants’ choices are informed throughout their involvementin the mental health court” and emphasizes that defensecounsel, as with all other mental health court staff, shouldreceive specialized training in mental health issues. TheCriminal Justice/Mental Health Consensus Project, whichis coordinated by the Justice Center, offers a variety of
5. Resentencing of inmates convicted and sentenced toindeterminate terms under former law (Mostprovisions effective 6 months from enactment)
The bill authorizes discretionary resentencing ofinmates who were convicted of Class B drug offensescommitted prior to January 13, 2005, and sentenced toindeterminate terms under the old sentencing law.Inmates serving indeterminate terms with maximumterms of “more than 3 years” (e.g., 2–4 years) may petitionthe sentencing court for resentencing under the newdeterminate sentencing scheme. As part of the applica-tion, the inmate may also move for resentencing on anyClass C, D, or E drug or marijuana convictions “whichwere imposed by the sentencing court at the same time orwere included in the same order of commitment as suchclass B felony.” The resentencing procedure will be gov-erned by the same rules included in the 2004 Drug LawReform Act. Inmates will have the immediate right toappointed counsel to prepare and file the petition, and theright to appeal from adverse determinations.
Exclusions: Inmates who are serving time for or havebeen convicted within the preceding 10 years, as meas-ured from the date of the resentencing application, of aviolent felony, or a merit-time ineligible offense [see Corr.Law § 803(1)(d)(ii)], or who were ever adjudicated a sec-ond violent felony offender or a persistent violent felonyoffender, are ineligible for resentencing.
6. New Crimes (Effective November 1, 2009)
The legislation enacts new crimes and enhanced sen-tencing for sale of a controlled substance by an adult (overage 21) to a child (under age 17), and for so-called drugkingpins. The “kingpin” statute applies to directors andprofiteers of controlled substance organizations. Themonetary threshold for criminal liability is set at $75,000over the course of 6 months or one year, depending on thedefendant’s role in the organization. (Bill sections 28 and29). �
Legislative Review (continued)
(continued on page 39)
Defender News (continued from page 8)
12 | Public Defense Backup Center REPORT Volume XXIV Number 2
March–May 2009 Public Defense Backup Center REPORT | 13
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14 | Public Defense Backup Center REPORT Volume XXIV Number 2
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. S
ee C
orr
ec
tio
n L
aw
§ 8
05
; is
sued
if
ind
ivid
ual
ach
iev
es
DO
CS
pro
gra
mm
ing
ob
jecti
ve
s.
1
EA
RL
Y R
EL
EA
SE
CH
EC
KL
IS
T:
DE
TE
RM
IN
AT
E S
EN
TE
NC
ES
Prog
ram
Eli
gib
ilit
yE
xclu
sio
ns
Imp
act
Imp
act
on
Cli
en
t
Wil
lard
CP
L §
41
0.9
1;
spec
ifie
d 2
d
D &
E p
rop
erty
off
ense
s; 2
d
C, D
, &
E d
rug o
ffen
ses;
1st
B
dru
g o
ffen
se (
exce
pt
CS
CS
to
a C
hil
d)
No
cu
rren
t co
nv
icti
on
no
n-s
pec
ifie
d o
ffen
se;
no
pri
or
VF
O,
clas
s A
or
B n
on
-dru
g f
elo
ny c
on
vic
tio
n;
no
t su
bje
ct t
o
un
dis
char
ged
ter
m o
f p
riso
n
Sen
ten
ced
to
par
ole
sup
ervis
ion
, w
ith
fir
st 9
0
day
s sp
ent
at W
illa
rd
Sh
ock
Co
rrec
tio
n L
aw §
§ 8
65
-86
7;
b/w
16
an
d 5
0
yea
rs o
ld;
wit
hin
3 y
ears
cond
itio
nal
rel
ease
No
t co
nvic
ted
A-I
, V
FO
, se
x,
ho
mic
ide,
esc
ape
or
absc
on
din
g,
or
seco
nd
B d
rug f
elo
ny w
/ p
rio
r vio
len
t;
can
no
t h
ave
pre
vio
usl
y d
on
e st
ate
bid
.
Mu
st
be
scre
ened
by S
ho
ck s
cree
nin
g c
om
mit
tee
(in
dic
atio
ns
of
vio
len
ce,
pre
dat
ory
b
ehav
ior,
or
crim
es o
f so
ph
isti
cati
on
; m
edic
al o
r
men
tal
hea
lth
pro
ble
ms)
Gra
du
ates
of
6 m
on
th
pro
gra
m e
arn
EE
C a
nd
1
are
imm
edia
tely
con
dit
ion
al r
elea
se
elig
ible
Ju
dic
ial
Sh
ock
PL
§ 6
0.0
4(7
); s
ame
as a
bo
ve,
bu
t m
ust
als
o b
e
convic
ted d
rug o
ffen
se
Sam
e as
ab
ov
e, b
ut
scre
ened
on
ly f
or
med
ical
/men
tal
hea
lth
pro
ble
ms;
if
exis
t, a
lter
nat
ive-
to-S
ho
ck p
rog
ram
mu
st b
e m
ade
avai
lab
le.
sam
e as
ab
ove
Tem
pora
ry
Rele
ase
(in
clu
des
CA
SA
T)
Co
rrec
tio
n L
aw §
§ 8
51
-86
1;
wit
hin
24
mo
nth
s
of
earl
iest
rel
ease
(3
0 m
on
ths
for
dru
g
off
ense
s) a
nd
req
uis
ite
tim
e in
(gen
eral
ly 6
mo
nth
s; 9
mo
nth
s fo
r se
con
d B
fel
on
y d
rug
off
ense
)
No
t co
nv
icte
d V
FO
, se
x o
ffen
se,
ho
mic
ide,
esc
ape,
absc
on
din
g,
or
aggra
vat
ed h
aras
smen
t o
f D
OC
S e
mp
loyee
;
vio
len
t fe
lon
y o
ver
rid
e av
ail
wh
ere
no
use
or
po
sses
sio
n o
f
dea
dly
wea
po
n/d
anger
ou
s o
r n
o s
erio
us
inju
ry.
Rel
ease
to
co
mm
un
ity f
or
exte
nd
ed p
erio
ds
of
tim
e
for
wo
rk,
edu
cati
on
, et
c.
Ju
dic
ial
CA
SA
TP
L §
60
.04
(6);
co
nvic
tio
n f
or
dru
g o
ffen
seF
or
CA
SA
T a
nn
ex a
nd
wo
rk r
elea
se, m
ust
no
t h
ave
any o
f
abo
ve
excl
usi
on
s.
If a
bo
ve
excl
usi
on
s ap
ply
, w
ill
on
ly g
et
CA
SA
T a
nn
ex a
nd
on
ly w
hen
6-9
mo
nth
s fr
om
ear
lies
t
rele
ase.
If T
R e
lig
ible
, w
ill
ente
r
CA
SA
T a
nn
ex f
or
6
mo
nth
s an
d t
hen
wo
rk
rele
ase.
Presu
mp
tiv
e
Rele
ase
Co
rrec
tio
n L
aw §
80
6;
hav
e ac
hie
ved
an
EE
C
(§ 8
05
)
No
t co
nv
icte
d A
-I,
VF
O,
spec
ifie
d h
om
icid
e, s
ex o
ffen
se,
sex p
erfo
rman
ce o
f ch
ild
, h
ate
crim
e, t
erro
rism
, o
r
aggra
vat
ed h
aras
smen
t o
f em
plo
yee
; n
o s
erio
us
dis
cip
lin
ary
infr
acti
on
or
friv
olo
us
law
suit
.
Rel
ease
d a
t ea
rlie
st
rele
ase
op
po
rtu
nit
y
Merit
Rele
ase
Co
rrec
tio
n L
aw §
80
3;
ach
ieve
EE
C o
ne
of
4
pro
gra
m o
bje
ctiv
es.
No
t co
nv
icte
d V
FO
, A
-I n
on
-dru
g f
elo
ny,
sex
or
ince
st
off
ense
, o
r ag
gra
vat
ed h
aras
smen
t D
OC
S e
mp
loyee
1/7
off
min
imu
m i
n
ad
dit
ion
to t
he
1/7
off
fo
r
con
dit
ion
al r
elea
se.
Co
nd
itio
na
l R
ele
ase
all
det
erm
inat
e se
nte
nce
sp
oo
r in
stit
uti
on
al r
eco
rd1
/7 o
ff d
eter
min
ate
sen
ten
ce
Po
st R
ele
ase
Su
perv
isio
n:
1-5
fo
r n
on
sex f
elo
nie
s (P
L §
70
.45
(2))
; 3 t
o 2
5 y
ea
rs
for f
elo
ny s
ex o
ffen
ses
(PL
§ 7
0.8
0).
Legislative Review (continued)
March–May 2009 Public Defense Backup Center REPORT | 15
Earn
ed
Eli
gib
ilit
y C
ert
ific
ate
. S
ee C
orr
ec
tio
n L
aw
§ 8
05
; m
ea
sure
s w
heth
er
or
no
t ach
iev
ed
DO
CS
pro
gra
mm
ing
ob
jecti
ves.
1
EA
RL
Y R
EL
EA
SE
CH
EC
KL
IS
T:
IN
DE
TE
RM
IN
AT
E S
EN
TE
NC
ES
Prog
ram
Eli
gib
ilit
yE
xclu
sio
ns
Imp
act
Imp
act
on
Cli
en
t
Wil
lard
CP
L §
41
0.9
1;
spec
ifie
d 2
d
D &
E p
rop
erty
off
ense
s; 2
d
C, D
, &
E d
rug o
ffen
ses;
1st
B
dru
g o
ffen
se (
exce
pt
CS
CS
to
Ch
ild
)
No c
urr
ent
con
vic
tion n
on
-spec
ifie
d o
ffen
se;
no p
rior
VF
O,
clas
s A
or
B n
on
-dru
g f
elo
ny c
on
vic
tio
n;
no
t su
bje
ct t
o
un
dis
char
ged
ter
m o
f p
riso
n
Sen
ten
ced
to
par
ole
sup
ervis
ion
, w
ith
fir
st 9
0
day
s sp
ent
at W
illa
rd
Sh
ock
Co
rrec
tio
n L
aw §
§ 8
65
-86
7;
b/w
16
an
d 5
0
yea
rs o
ld;
wit
hin
3 y
ears
par
ole
eli
gib
ilit
y
No
t co
nvic
ted
A-I
, V
FO
, se
x,
ho
mic
ide,
esc
ape,
ab
sco
nd
ing,
or
seco
nd
B d
rug f
elo
ny w
/ p
rio
r vio
len
t; c
ann
ot
hav
e
pre
vio
usl
y d
on
e st
ate
bid
. M
ust
be
scre
ened
by S
ho
ck
scre
enin
g c
om
mit
tee
(in
dic
atio
ns
of
vio
len
ce,
pre
dat
ory
beh
avio
r, o
r cr
imes
of
soph
isti
cati
on
; m
edic
al o
r m
enta
l
hea
lth p
rob
lem
s)
Gra
du
ates
of
6 m
on
th
pro
gra
m e
arn
EE
C a
nd
1
are
imm
edia
tely
par
ole
elig
ible
Ju
dic
ial
Sh
ock
PL
§ 6
0.0
4(7
); s
ame
as a
bo
ve,
bu
t m
ust
als
o b
e
con
vic
ted
dru
g o
ffen
se
Sam
e as
ab
ove,
bu
t sc
reen
ed o
nly
fo
r m
edic
al/
men
tal
hea
lth
pro
ble
ms;
if
exis
t, a
lter
nat
ive-
to-S
ho
ck p
rogra
m m
ust
be
mad
e av
aila
ble
.
sam
e as
ab
ove
Tem
pora
ry
Rele
ase
(in
clu
des
CA
SA
T)
Co
rrec
tio
n L
aw §
§ 8
51
-86
1;
wit
hin
24
mo
nth
s
of
earl
iest
rel
ease
(3
0 m
on
ths
for
dru
g o
ffen
ses)
and
req
uis
ite
tim
e in
(gen
eral
ly 6
mo
nth
s; 9
mo
nth
s fo
r se
con
d B
fel
on
y d
rug o
ffen
se)
Not
con
vic
ted V
FO
, se
x o
ffen
se,
hom
icid
e, e
scap
e,
absc
ond
ing,
or
aggra
vat
ed h
aras
smen
t of
DO
CS
em
plo
yee
;
vio
lent
felo
ny o
ver
ride
avai
l w
her
e no p
oss
essi
on o
f use
dea
dly
wea
po
n/d
anger
ou
s in
stru
men
t o
r n
o s
erio
us
inju
ry.
rele
ase
to c
om
mu
nit
y f
or
exte
nd
ed p
erio
ds
of
tim
e
for
wo
rk,
edu
cati
on
, et
c.
Ju
dic
ial
CA
SA
TP
L §
60
.04
(6);
co
nvic
tio
n f
or
dru
g o
ffen
seF
or
CA
SA
T a
nn
ex a
nd
wo
rk r
elea
se, m
ust
no
t h
ave
any o
f
above
excl
usi
on
s.
If a
bove
excl
usi
ons
app
ly,
wil
l on
ly g
et
CA
SA
T a
nnex
and o
nly
when
6-9
mon
ths
from
ear
lies
t
rele
ase.
If T
R e
ligib
le,
wil
l en
ter
CA
SA
T a
nn
ex f
or
6
mo
nth
s an
d t
hen
wo
rk
rele
ase.
Presu
mp
tiv
e
Rele
ase
Co
rrec
tio
n L
aw §
80
6;
hav
e ac
hie
ved
an
EE
C
(§ 8
05
)
Not
con
vic
ted A
-I,
VF
O,
spec
ifie
d h
om
icid
e, s
ex o
ffen
se,
sex p
erfo
rman
ce o
f ch
ild
, h
ate
crim
e, t
erro
rism
, o
r
aggra
vat
ed h
aras
smen
t o
f em
plo
yee
; n
o s
erio
us
dis
cip
lin
ary
infr
acti
on
or
friv
olo
us
law
suit
.
Rel
ease
d a
t ea
rlie
st
rele
ase
op
po
rtu
nit
y
wit
ho
ut
hav
ing t
o a
pp
ear
bef
ore
Par
ole
Bo
ard
.
Merit
Rele
ase
Co
rrec
tio
n L
aw §
80
3;
ach
ieve
EE
C o
ne
of
4
pro
gra
m o
bje
ctiv
es.
Not
con
vic
ted V
FO
, A
-I n
on-d
rug f
elon
y,
sex o
r in
cest
off
ense
, or
aggra
vat
ed h
aras
smen
t D
OC
S e
mplo
yee
1/6
off
min
imum
sen
tence
(1/3
for
A-I
dru
g f
elon
ies)
Su
pp
lem
enta
l M
eri
t
Rele
ase
L.
20
05
, C
h. 7
36
, §
30
; d
rug o
ffen
se c
on
vic
tio
n
pri
or
to 2
00
4;
sam
e as
ab
ov
e, b
ut
must
com
ple
te 2
of
4 p
rog
ram
obje
ctiv
es.
sam
e as
ab
ove,
bu
t A
-I f
elo
ny d
rug o
ffen
ses
excl
ud
ed.
an a
dd
itio
nal
1/6
off
min
.
Co
nd
itio
na
l R
ele
ase
all
ind
eter
min
ate
sen
ten
ces
po
or
inst
itu
tio
nal
rec
ord
1/3
off
max
imu
m
16 | Public Defense Backup Center REPORT Volume XXIV Number 2
Prisoners’ Legal Services of New York(PLS) is seeking applicants for a StaffAttorney position in our Plattsburg, NewYork regional office. PLS is a statewideprogram providing civil legal services topeople incarcerated in New York Stateprisons. We have regional offices inAlbany, Buffalo, Ithaca, and Plattsburg.PLS handles a variety of advocacy aswell as litigation in state and federalcourts involving civil matters thatinclude mental health and medical care,prison disciplinary proceedings, exces-sive use of force, conditions of confine-ment, sentence calculation, and jail timecredit. We provide high quality legalservices and have been successful inestablishing important rights for ourclients. We see to hire an attorney who iscommitted to providing legal services tothe disadvantaged. Applicants must beadmitted to practice in New York State orbe eligible for admission pro hac vice,and be willing to take the next availablebar exam. Applicants must have betweenfour (4) and six (6) years of legal practiceexperience, preferably in the areas ofprisoners’ rights, civil legal services, civilrights, poverty law, or federal litigation,and who are interested in litigating instate and federal court. Applicants alsomust be willing to travel to conductprison visits throughout New York State.We have a need for staff who are fluent inSpanish. Upon hire, the Plattsburg officewill be staffed by a managing attorney,two staff attorneys, a paralegal, and anadministrative support person, all ofwhom collaborate with other PLS staffthroughout the state. PLS offers a com-petitive salary in addition to an out-standing benefit package, includinghealth, dental, long-term disability, andlife insurance, as well as generous leavepolicies. We seek to be a well-balanced,diverse organization. We encouragewomen and minorities to apply. Platts-burg is located in the northeastern cornerof the state, along the shore of LakeChamplain, near the heart of theAdirondack Park, and approximatelyone hour from both Montreal, Quebec,and Burlington, Vermont. To apply,please send a cover letter, résumé, writ-ing sample, and list of three references byregular mail or email to Michael Cassidy,Managing Attorney, Prisoners’ LegalServices of New York, 121 Bridge Street,Suite 202, Plattsburg, NY 12901, [email protected]. Deadline: June 12, 2009.
The Oneida County Public Defender-Criminal Division is accepting applica-tions for Assistant Public Defender(Criminal Division)—3rd Assistant.Assistant Public Defenders assist thePublic Defender in the representation ofindigent persons charged with crimes atall stages of a criminal proceeding; keepabreast of all procedures and policieswithin the Public Defender’s Office; andassist the Public Defender in maintaininglaw files which may be useful in criminaldefense work. Applicants must be admit-ted to the Bar of New York State and havea valid NYS driver’s license or submit avalid driver’s license with applicationsubject to obtaining a NYS driver’slicense. To apply, send a completerésumé, including elementary educationand all employment, listing employers’addresses and telephone numbers; threereferences with addresses and telephonenumbers; a writing sample; and a certifi-cate of good standing from the AppellateDivision of admission to Frank J.Nebush, Jr., Oneida County PublicDefender, Criminal Division, 250 Boeh-lert Center at Union Station, 321 MainStreet, Utica, NY 13501; fax (315) 798-6419; email [email protected]. For moreinformation, visit www.oneidacounty.org.
The Urban Justice Center’s MentalHealth Project seeks a Parent AdvocacyAttorney for its Parents with PsychiatricDisabilities Legal Advocacy Project(PPDLA). The PPDLA is funded by theCommission on Quality of Care andAdvocacy for Persons with Disabilities.The mission of the PPDLA is to providerepresentation, information, and adviceto parents with psychiatric disabilities inFamily Court, particularly in abuse andneglect and termination proceedings, inNew York City and Nassau, Suffolk, andWestchester counties. Candidates musthave the creativity and drive to continuea burgeoning area of practice within ourorganization and the expertise to provideexcellent advice and representation. Theattorney will cooperate with an advisorycouncil to help guide the PPDLA; estab-lish online resources for parents withpsychiatric disabilities in Family Court;publish a practitioner’s guide specificallyfor Family Court attorneys and judgesworking with parents with psychiatricdisabilities, and a Family Court hand-book for parents; conduct trainings inNew York City, Westchester, Suffolk, and
Nassau counties; and represent parentswith psychiatric disabilities in FamilyCourt. Requirements: J.D. and 5 years’experience, with at least 3 years’ experi-ence specifically litigating neglect andtermination proceedings. Experiencewith the mental health system and fluen-cy in Spanish are strong plusses. Toapply, send a cover letter, résumé, briefwriting sample, and contact informationfor three references to Charlyne Brums-kine Peay, Acting Project Director, MentalHealth Project, Urban Justice Center, 123William Street, 16th Floor, New York, NY10038 or [email protected]. Appli-cations will be reviewed on a rollingbasis, so applicants are encouraged toapply as soon as possible; deadline6/30/2009. Please do not contact us byfax or phone. Salary DOE, excellent ben-efits, vacation, and leave package. Peopleof color, LGBT people, people who havepersonal experience with poverty, andpeople with disabilities are stronglyencouraged to apply. For more informa-tion, visit www.urbanjustice.org.
Legal Assistance of Western New York,Inc. (LAWNY) is seeking applicants forup to two Equal Justice Works Ameri-Corps Legal Fellow positions becomingavailable on or about August 1, 2009through a Corporation for National andCommunity Service funded programadministered by Equal Justice Works.LAWNY currently has three Equal JusticeWorks AmeriCorps Legal Fellows, oneeach in our Ithaca, Rochester, andGeneva offices. We are seeking to fill theIthaca position, and the Rochester posi-tion may also be available. The threelegal fellows will work together toaddress gaps in legal services throughthe recruitment and management or probono law students and attorneys, andthrough the provision of direct legalservices. The goal is to develop qualitypro bono opportunities for law studentsin order to expand the availability oflegal resources to low-income and under-served communities throughout upstateNew York. Fellows will spend approxi-mately 50% of their time providing directlegal assistance to LAWNY clients.Applicants should be admitted to prac-tice in New York or recent law schoolgraduates who have sat for the last barexam or are able to sit for the next avail-able bar examination. Excellent inter-
Job Opportunities
(continued on page 39)
United States Supreme Court
Harmless and Reversible Error HRE; 183.5(10) (20) (Harmless Error) (General)
Instructions to Jury (General) ISJ; 205(35)
Hedgpeth v Pulido, 555 US __, 129 SCt 530 (2008)
The respondent was convicted of felony murder aftera jury trial. On appeal, he challenged the jury instructionsbecause they allowed a finding of felony murder if heformed the intent to aid and abet the underlying crimeafter the murder. The California Supreme Court held thistheory was invalid, but found that the error did not prej-udice the respondent and affirmed the conviction. Thedistrict court granted the respondent’s habeas petition,holding that the error had a “‘substantial and injuriouseffect or influence in determining the jury’s verdict.’” TheCourt of Appeals affirmed, concluding that instructingthe jury on multiple theories of guilt, one of which is legal-ly improper, was a structural error that did not requireharmless-error analysis.
Holding: A conviction based on a general verdict canbe challenged if the jury was instructed on alternative the-ories of guilt and may have relied on a legally invalid one.See Stromberg v California, 283 US 359 (1931); Yates v UnitedStates, 354 US 298 (1957). The parties agree that the Courtof Appeals erred in treating the jury charge issue as struc-tural. The proper inquiry was whether the flaw in theinstructions had a “‘substantial and injurious effect orinfluence in determining the jury’s verdict.’” Brecht vAbrahamson, 507 US 619, 623 (1993); see Chapman vCalifornia, 386 US 18 (1967). “[V]arious forms of instruc-tional error are not structural but instead trial errors sub-ject to harmless-error review. See, e.g., Neder v. UnitedStates, 527 U.S. 1 (1999) . . .; California v. Roy, 519 U.S. 2(1996) . . . .” Unless the invalid instruction vitiated all thejury’s findings, harmless-error analysis applies. Onremand, the Court of Appeals must apply the Brecht,harmless-error analysis. Judgment vacated and matterremanded.
Dissent: [Stevens, J] Although the Court of Appealsincorrectly used the term “structural,” it applied the samecorrect analysis as the district court, which is set forth inKotteakos v United States (328 US 750 [1946]), Brecht, andO’Neal v McAninch (513 US 432 [1995]). Since the district
court’s analysis was correct and the appellate court’sanalysis was essentially the same, it is a waste of judicialresources to remand for another review.
Prior Convictions (Sentencing) PRC; 295(25)
Sentencing (Enhancement) SEN; 345(32)
Chambers v United States, 555 US __, 129 SCt 687(2009)
The petitioner pleaded guilty to being a felon unlaw-fully in possession of a firearm. The district court imposeda 15-year mandatory prison term under the Armed CareerCriminal Act (ACCA) based on the defendant’s threeprior convictions, one of which was an Illinois state con-viction for failing to report to a penal institution. SeeIllinois Comp Stat, ch. 720, §5/31-6(a). The court, con-cluding that the failure to report conviction was the equiv-alent of escape from a penal institution, held that it was aviolent felony under the ACCA. The Court of Appealsaffirmed.
Holding: The crime of failure to report is not a violentfelony within the terms of the ACCA’s residual clause. See18 USC 924(e)(2)(B)(ii). In determining whether an offenseis a violent felony, courts must examine the crime as gen-erally committed. See Taylor v United States, 495 US 575,602 (1990); see also Shepard v United States, 544 US 13, 16-17(2005). The Illinois statute includes several different kindsof behavior, including escape from custody, failure toreport, and failing to abide by the terms of home confine-ment. The failure to report is a separate crime that differsfrom escape. The failure to report is less likely to involvea risk of physical harm (see Begay v United States, 553 US__, __ [2008] (slip op. at 7)), and the statute separates thetwo categories of behavior into different felony classes.Failure to report does not have an element of use, attempt-ed use, or threatened use of physical force against anoth-er (see 18 USC 924(e)(2)(B)(i)), nor does it involve conductthat presents a serious potential risk of physical injury toanother. See 18 USC 924(e)(2)(B)(ii). A person who com-mits a failure to report offense is not “significantly morelikely than others to attack, or physically to resist, anapprehender, thereby producing a ‘serious potential riskof physical injury.’” See Sentencing Guideline, “Escape,Instigating or Assisting Escape,” 1 United States SentencingCommission, Guidelines Manual § 2P1.1 (Nov. 2008); Reporton Federal Escape Offenses in Fiscal Years 2006 and 2007, p. 7(Nov. 2008). Judgment reversed and matter remanded.
Concurrence: [Alito, J] While the analysis and resultare correct under Begay and Taylor, it is clear that it is near-ly impossible to apply the ACCA’s residual clause consis-tently. “[T]he only tenable, long-term solution is forCongress to formulate a specific list of expressly definedcrimes that are deemed to be worthy of ACCA’s sentenc-ing enhancement.”
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Case DigestThe following is a synopsis of recent case law of interestto the public defense community. The index headingsappearing before each case are from the Association’sSubject Matter Index. These case briefings are not ex-haustive, nor are they designed to replace a carefulreading of the full opinion.
Citations to the cases digested here can be obtainedfrom the Backup Center as soon as they are published.
Habeas Corpus (Federal) (General) HAB; 182.5(15) (20)
Jimenez v Quarterman, 555 US __, 129 SCt 681 (2009)
In a direct appeal of the petitioner’s 1995 conviction,his attorney filed an Anders brief (Anders v California, 386US 738 [1967]); the petitioner did not receive a copy of thebrief. The appeal was dismissed on September 11, 1996,but the petitioner did not receive a copy of it. When thepetitioner eventually learned of the dismissal, he filed astate habeas corpus petition claiming that he was deniedhis meaningful right to appeal. On September 25, 2002,the Texas Court of Criminal Appeals granted the petition-er the right to file an out-of-time appeal. The petitioner’sconviction was affirmed and the time for seeking certio-rari review with the US Supreme Court expired onJanuary 4, 2004. On December 6, 2004, the petitioner fileda second habeas corpus petition in state court, which wasdenied on June 29, 2005. The petitioner filed his federalhabeas corpus petition on July 19, 2005. The district courtdismissed the petition as time-barred and the Court ofAppeals denied his request for a certificate of appeal-ability.
Holding: The Antiterrorism and Effective DeathPenalty Act of 1996 (AEDPA) establishes a one-year timelimitation for a state prisoner to file a federal habeas cor-pus petition, which runs from the latest of four dates. See28 USC 2244(d)(1). The relevant date in this case is “‘thedate on which the judgment became final by the conclu-sion of direct review or the expiration of the time for seek-ing such review.’” 28 USC 2244(d)(1)(A). Under the plainlanguage of the statute, direct review of the petitioner’sconviction became final on January 6, 2004, and the timeduring which the petitioner’s properly filed applicationfor state post-conviction relief was pending is excludedfrom the one-year period. See 28 USC 2244(d)(2). Directreview cannot end until the availability of direct appeal tothe state courts and to this Court is exhausted. See Caspariv Bohlen, 510 US 383, 390 (1994); Lawrence v Florida, 549 US327, 332-333 (2007). When the state court reopened directreview of the petitioner’s conviction, the conviction wasno longer final because it was capable of being modifiedthrough direct appeal to the state courts and to this Court.When a federal court is presented with an individual’sfirst habeas petition, the statute requires the court to usethe “date on which the entirety of the state direct appel-late review process was completed.” Judgment reversedand matter remanded.
Arrest (Police Officers) (Records) ARR; 35(30) (40) (55)(Warrants)
Search and Seizure (Arrest/ SEA; 335(10[a] [g(v)])Scene of the Crime Searches [Automobiles and Other Vehicles] [Probable Cause (Official Sources)])
Herring v United States, 555 US __, 129 SCt 695 (2009)
The petitioner went to the police station to retrievesomething from his impounded truck. A sheriff’s investi-gator, prompted by his visit, asked the warrant clerk tocheck for outstanding warrants. When no warrants werediscovered, the investigator asked the clerk to contact theclerk in a neighboring county. That county’s databaseshowed an open bench warrant. Police officers stoppedthe petitioner’s car near the station and a search revealedmethamphetamine and a gun. When the clerk in the othercounty realized the warrant had been recalled five monthsearlier, she contacted the warrant clerk, who passed theinformation to the officers. Although this occurred within10 or 15 minutes, the petitioner had already been arrested.The district court denied the petitioner’s motion to sup-press the evidence, and he was convicted of federal drugand gun possession offenses. The Court of Appealsaffirmed.
Holding: The good faith exception to the exclusionaryrule applies because the arrest and search resulted from anegligent act, an isolated police warrant database error.See United States v Leon, 468 US 897 (1984). For the exclu-sionary rule to apply, “police conduct must be sufficientlydeliberate that exclusion can meaningfully deter it, andsufficiently culpable that such deterrence is worth theprice paid by the justice system.” Analysis of culpabilityand deterrence is objective and does not depend on thesubjective awareness of the arresting officers. Exclusionwould be justified if the police were reckless in maintain-ing a warrant system or knowingly made false entries.However, there was no evidence that errors in the data-base at issue here are routine or widespread and the inves-tigator’s reliance on the database was objectively reason-able. See Arizona v Evans, 514 US 1, 15 (1995). Judgmentaffirmed.
Dissent: [Ginsburg, J] “Negligent recordkeepingerrors by law enforcement threaten individual liberty, aresusceptible to deterrence by the exclusionary rule, andcannot be remedied effectively through other means. Sucherrors present no occasion to further erode the exclusion-ary rule.”
Dissent: [Breyer, J] There must be a clear line betweenjudicial recordkeeping errors, which do not usually trig-ger the exclusionary rule, and police recordkeepingerrors, to which the exclusionary rule should alwaysapply.
Juries and Jury Trials (Constitution— JRY; 225(20) (35)right to) (Findings)
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Sentencing (Concurrent/Consecutive) SEN; 345(10)
Oregon v Ice, 555 US __, 129 SCt 711 (2009)
The respondent was convicted of two counts of bur-glary and four counts of sexual assault stemming fromtwo separate incidents. The sentencing judge, followingOregon’s sentencing law, made statutorily mandated fac-tual findings to support consecutive sentences for theburglary counts and two of the assault counts, for a totalsentence of 340 months. See Ore Rev Stat 137.123. The sen-tence would have been 90 months if the sentences wereconcurrent. The appellate court affirmed, but the OregonSupreme Court reversed.
Holding: The Apprendi/Blakely rule does not apply tothe Oregon consecutive sentencing statute. See Apprendi vNew Jersey, 530 US 466 (2000); Blakely v Washington, 542 US296 (2004). Apprendi held that the Sixth Amendment jury-trial right requires that “‘any fact that increases the penal-ty for a crime beyond the prescribed statutory maximummust be submitted to a jury, and proved beyond a reason-able doubt.’” A review of historical practice and respectfor state sovereignty show that Apprendi’s rule should notbe extended to the imposition of sentences for discretecrimes. Historically, the jury did not play a role in decid-ing between consecutive and concurrent sentences andmost courts imposed consecutive sentences. Because statelegislative reforms regarding imposition of multiple sen-tences do not involve judicial encroachment on facts his-torically found by the jury, the reforms to not implicatecore concerns underlying Apprendi. States’ interest indeveloping their penal systems and their dominion overthis area counsel against extending Apprendi to Oregon’sconsecutive sentencing law and similar laws in otherstates. And such an extension would be difficult for statesto administer. Judgment reversed and matter remanded.
Dissent: [Scalia, J] Consecutive sentences are a greaterpunishment, and the facts underlying that determinationmust be decided by a jury beyond a reasonable doubt. SeeRing v Arizona, 536 US 584, 602 (2002). The Court relies ona distinction without a difference and its argumentsagainst applying Apprendi are the same arguments thatthis Court rejected in Apprendi.
Search and Seizure (Arrest/ SEA; 335(10[a] [m]) (75) (85)Scene of the Crime Searches [Automobiles and Other Vehicles] [Scope]) (Stop and Frisk Suppression) (Weapons-frisks)
Arizona v Johnson, 555 US __, 129 SCt 781 (2009)
The defendant was a backseat passenger in a car that
was pulled over for an insurance-related violation. Thedefendant, the driver, and the front-seat passenger alldenied that there were weapons in the car. The driver wasinstructed to get out of the car. The officer who waswatching the defendant noticed that he had looked backand kept his eyes on the officers when they approachedthe car. She also noticed that he was wearing clothing thatshe thought was consistent with gang membership andsaw a scanner in his jacket pocket. The officer, wanting toquestion the defendant privately about the gang he mightbe in, asked him to get out of the car. Because the officersuspected that he might have a weapon, she patted himdown. During the patdown, she felt the butt of a gun nearthe defendant’s waist. The defendant was convicted of aweapon possession offense. The Arizona Court of Appealsreversed the conviction and the Arizona Supreme Courtdenied review.
Holding: When a car is lawfully detained for a trafficviolation, the police may order the driver and any pas-sengers out of the car. See Pennsylvania v Mimms, 434 US106 (1977); Maryland v Wilson, 519 US 408 (1997). During alawful traffic stop, the driver and any passengers areseized until the officers inform them that they are free togo. See Brendlin v California, 551 US 249 (2007). Once out ofthe car, an officer may pat down a passenger for weaponsif that officer reasonably suspects that the person might bearmed and presently dangerous. It is irrelevant that theofficer sought to ask the defendant about matters thatwere unrelated to the traffic stop, as long as the inquirydoes not measurably extend the duration of the stop. SeeMuehler v Mena, 544 US 93, 100-101 (2005). Nothing thatoccurred prior to the frisk conveyed to the defendant thatthe stop had ended or that he was otherwise free to departwithout police permission, so the issue of consent is alsoirrelevant. Judgment reversed and matter remanded.
Federal Law (General) (Procedure) FDL; 166(20) (30)
Sentencing (Appellate Review) SEN; 345(8) (39) (Guidelines)
Nelson v United States, 555 US __, 129 SCt 890 (2009)
The district court sentenced the petitioner to 360months in prison, the bottom of the United StatesSentencing Guidelines range, and noted that circuit prece-dent establishes that the Guidelines are presumptivelyreasonable. The Court of Appeals affirmed. The SupremeCourt vacated that judgment and remanded for furtherconsideration in light of Rita v United States, 551 US 338(2007). The Court of Appeals again affirmed.
Holding: Court precedent establishes that sentencingjudges may not presume that a sentence within theGuideline range is reasonable. See Gall v United States, 552US __ (2007). In Rita, the Court held that the reasonable-ness presumption is an appellate court presumption. The
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district court’s comments at sentencing make clear that itapplied a presumption of reasonableness to the Guide-lines range, which is an error. Judgment reversed andmatter remanded.
Concurrence: [Breyer, J] Because the Solicitor Generalconceded the Court of Appeals’ error, the certiorari peti-tion should be granted and the judgment vacated.
New York State Court of Appeals
Appeals and Writs (Scope and APP; 25(90)Extent of Review)
Evidence (Prejudicial) (Uncharged EVI; 155(106) (132)Crimes)
People v Dorm, 12 NY3d 16, 874 NYS2d 866 (2009)
The relationship between the defendant and the com-plainant ended after they had a physical altercation. A fewweeks later, the defendant went to the complainant’splace of employment, and while they talked at a nearbycafe, the defendant grabbed the complainant’s hand tokeep her from leaving. When he showed up there the nextday, he was arrested. At his first trial, the court denied theprosecution’s request to introduce evidence of the defen-dant’s prior conduct toward the complainant and similarconduct against other women for which he was arrested.The jury acquitted the defendant of third-degree assaultand stalking, but deadlocked on the remaining charges.The judge who presided over the second trial allowed evi-dence about the defendant’s other conduct toward thecomplainant, but not other women, and gave limitinginstructions to the jury. The jury convicted the defendantof unlawful imprisonment and second-degree assault.The Appellate Division affirmed.
Holding: The evidence of the defendant’s conductwas admissible because it was not propensity evidence.See People v Molineux, 168 NY 264. It was probative of hismotive and intent to assault the complainant, it providednecessary background information about the relationship,and it put the charges in context. See People v Resek, 3NY3d 385, 389. That the two judges reached opposite con-clusions about the evidence does not suggest an abuse ofdiscretion. The judges both properly exercised their dis-cretion, and the analysis of whether the court properlyexercised its discretion is not influenced by the outcomesof the trials. Order affirmed.
Sentencing (Concurrent/ SEN; 345(10) (70) (72)Consecutive) (Pronouncement) (Second Felony Offender)
People ex rel Gill v Greene, 12 NY3d 1, 875 NY2d 826(2009)
The petitioner was sentenced as a second felonyoffender to an indeterminate prison term. The court didnot state whether the sentence would run consecutively tothe petitioner’s prior, undischarged sentences. TheDepartment of Correctional Services (DOCS) calculatedthe petitioner’s release date on the assumption that thesentences were consecutive to each other. The petitionerfiled a habeas corpus petition alleging that the sentencewas concurrent. The court dismissed the petition, con-cluding that even if he was correct, the petitioner was notentitled to habeas relief. The Appellate Division convert-ed the habeas petition to an Article 78 petition andreversed.
Holding: When consecutive sentences are required bystatute and the court does not state whether the sentencesare concurrent or consecutive, the court is deemed to haveimposed the legally required consecutive sentences.Because the petitioner was sentenced as a second felonyoffender, Penal Law 70.25(2-a) required the court toimpose a consecutive prison term. The court’s omissionrelated to the characterization of the sentence as eitherconcurrent or consecutive, and not to a part of the sen-tence, such as post-release supervision. See Matter ofGarner v New York State Dept of Correctional Servs, 10 NY3d358; Earley v Murray, 451 F3d 71 (2d Cir 2006). Neither thestatute nor the Constitution requires the court to state,orally or in writing, that the sentence is consecutive. Andthe court does not need to be notified of prior, undis-charged sentences. Although the court had no choice butto impose a consecutive sentence, its silence was not anerror and DOCS properly interpreted the 1994 sentence asconsecutive to the prior sentences. Order reversed.
Search and Seizure (Arrest/ SEA; 335(10[m]) (80)Scene of the Crime Searches [Scope]) (Warrantless Searches)
People v Maye, 12 NY3d 731, __ NYS2d __ (2009)
Holding: “Defendant seeks suppression of evidenceincluding cocaine found in a ‘baggie’ during a manualbody cavity search performed at a police station, withouta warrant. The officer who carried out the search testifiedthat he saw the ‘baggie’ protruding from the defendant’srectum, and removed it. Since no exigent circumstancesprevented the police from seeking prior judicial authori-zation for the search, defendant’s motion to suppressshould be granted to the extent of suppressing the cocainerecovered (see People v Hall, 10 NY3d 303, 311 [2008]).”Order modified and matter remanded.
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Arrest (Identification) (Warrantless) ARR; 35(15) (54)
Confessions (Illegal Arrest) CNF; 70(35)
Search and Seizure (Detention) SEA; 335(25)
People v Ryan, 12 NY3d 28, __ NYS2d __ (2009)
A police officer asked the defendant to sit in a markedpolice car; the request was based on descriptions of theperpetrator of a car-jacking that occurred five hours earli-er and the police officer’s prior encounters with the defen-dant. The defendant was locked in the car until anotherofficer arrived; the officer did not tell the defendant whyhe was being detained. He was then moved to anotherlocked police car and was told he was a possible suspectin a car-jacking. The police photographed the defendant;the photo showed the defendant with his hands behindhis back. The complainant failed to identify the defendantfrom a photo array, but another witness did identify him.The defendant was held for 13 minutes before the officersinformed him that he was under arrest. Upon arriving atthe police station, he was placed in a locked room. Hewaived his Miranda rights, confessed, and later signed awritten statement.
Holding: The defendant’s detention was not justifiedby any special law enforcement need. See People v Hicks, 68NY2d 234. Unlike a show-up, the defendant did not needto be present while the police conducted the photo array,and there were no other exigent circumstances that mighthave justified the detention. Cf People v Allen, 73 NY2d378, 379-380. The police did not even know that the wit-ness would be available when they first detained thedefendant. It must be inferred that the defendant wasdetained to make it convenient to arrest him if there wasa positive identification. See People v Robinson, 282 AD2d75, 81. Thus, the photographs taken during the detentionmust be suppressed. The question of whether the defen-dant’s confessions and the evidence derived therefromwas not addressed by the lower courts. This is a mixedquestion of law and fact which should be presented to thetrial court. Order modified by remitting to the trial courtfor further proceedings.
Evidence (Instructions) (Uncharged EVI; 155(80) (132)Crimes)
People v Small, 12 NY3d 732, 876 NYS2d 675 (2009)
Holding: The court properly exercised its discretionin granting the prosecution’s application to presentMolineux evidence mid-trial. The prosecution’s applica-tion was made after the defendant raised an agencydefense. The court gave appropriate limiting instructions,telling the jury that the evidence could not be considered
as proof of propensity, but was solely offered to rebut theagency defense on the issue of intent.
The defendant is not entitled as a matter of law to pre-trial notice of or a pretrial hearing regarding the prosecu-tion’s intent to offer Molineux evidence. See People vMolineux, 168 NY 264. In order to avoid unfairness to thedefendant, the prosecutor must ask for a ruling outsidethe presence of the jury, and a hearing on the admissibili-ty of such evidence should take place before trial or, at thelatest, before the witness testifies. See People v Ventimiglia,52 NY2d 350, 362. Order affirmed.
First Department
Arrest (Identification) (Probable Cause) ARR; 35(15) (35)
Guilty Pleas (General [Including GYP; 181(25) (55)Procedure and Sufficiency of Colloquy]) (Vacatur)
Motions (Suppression) MOT; 255(40)
People v Lopez, 56 AD3d 280, 867 NYS2d 83 (1st Dept 2008)
Holding: “The plea was involuntary because, at theplea allocution, once again there was no mention of any ofthe rights defendant would be waiving by pleading guilty,including his right to a jury trial, his right of confrontationand his right against self-incrimination (see People v Colon,42 AD3d 411 [2007]). Since defendant’s plea was invalid,his waiver of the right to appeal is also invalid.” The courterred by unduly restricting the defendant’s opportunityto test the validity of the prosecution’s case by cross-examining the arresting officer during the suppressionhearing. The officer testified that a person who was pres-ent when he interviewed the complainant provided infor-mation about the incident. While the prosecution made aprima facie showing of probable cause for the arrest basedon the complainant’s information, this was not a properbasis for cutting off all questioning about the informationprovided by the other person. The defendant was entitledto ask about that person’s account of the incident anddescription of the perpetrator. See People v Misuis, 47NY2d 979. Judgment reversed, plea vacated, and matterremanded for further proceedings including a new sup-pression hearing. (Supreme Ct, Bronx Co [Stadtmauer, J])
Family Court (General) FAM; 164(20)
Juveniles (Hearings) (Visitation) JUV; 230(60) (145)
Matter of Robert C. v Katherine D., 56 AD3d 297, 867 NYS2d 404 (1st Dept 2008)
Holding: The court properly dismissed the petitionfor modification of a prior visitation order without preju-dice due to the petitioner’s nonappearance at a scheduled
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hearing. The petitioner, who was incarcerated, refused tocomplete a form that would have allowed him to testifyelectronically and he did not appear on the date of thehearing. The court did not have to produce the petitionersince an alternative means for his participation was avail-able. Contrary to the petitioner’s argument, his failure toappear was not due to the court’s statements about serv-ice of the summons. Although the court initially indicatedthat the petitioner had to personally serve the summonsand petition upon the respondent, it later acknowledgedthat requirement would be relaxed if personal service wasimpossible. See Matter of Cruz v Cruz, 48 AD3d 804, 806 lvden 10 NY3d 712. The respondent did not appear at thehearing and there is no indication that she was servedwith the petition or given notice of the hearing. See Matterof Church v Church, 294 AD2d 625. Order affirmed. (FamilyCt, Bronx Co [Levy, Ref])
Accomplices (Instructions) ACC; 10(25)
Grand Jury (General) (Procedure) GRJ; 180(3) (5) (15)(Witnesses)
People v Pacheco, 56 AD3d 381, 868 NYS2d 625(1st Dept 2008)
Holding: The court erred in dismissing the indict-ment. The defendant and three others were charged withburglarizing a truck. The grand jury first indicted the twomen who took a bag from the truck. In his grand jury tes-timony, the defendant stated that he told the two men notto steal from the truck. The grand jury delayed its vote onthe defendant’s charges until it heard testimony from thedriver of the van the men were in before the burglary,because his testimony was potentially relevant to its deci-sion. After the driver testified, the grand jury indicted thedefendant, but not the driver. The court dismissed theindictment because the prosecution did not instruct thegrand jury that the driver’s testimony could only be con-sidered if there was corroborating evidence. The court’sdecision on corroboration is correct; CPL 60.22 appliesbecause CPL 190.65(1) provides that a grand jury may notindict when the evidence is not legally sufficient becausecorroboration that is required as a matter of law to sustaina conviction is absent. However, because this error did notimpair the integrity of the grand jury (see People v Darby,75 NY2d 449, 455), the indictment must be reinstated.There was sufficient evidence to connect the defendant tothe crimes with which he was charged. See People vJohnson, 32 AD3d 761 lv den 7 NY3d 902. Order reversed,indictment reinstated, and matter remanded. (SupremeCt, New York Co [Scherer, J])
Concurrence: [Catterson, J] The lower court erred inruling that an accomplice corroboration instruction must
be provided to the grand jury for codefendant testimony.CPL 190.65(1) “merely stands for the proposition that adefendant may not be indicted for an offense whichrequires corroboration without such evidence being pre-sented to the grand jury. To transmogrify this section intoa requirement that the People charge accomplice liabilityflies in the face of [People v] Calbud [49 NY2d 389] and itsprogeny.”
Instructions to Jury (General) ISJ; 205(35)
Weapons (General) (Possession) WEA; 385(22) (30)
People v Wood, 58 AD3d 242, 869 NYS2d 401 (1st Dept 2008)
The defendant was charged with possession of aswitchblade knife that was disguised as a cigarette lighter.The defendant moved for a trial order of dismissal, argu-ing that there was no evidence that he knowingly pos-sessed a switchblade; the court reserved decision. Thecourt denied defense counsel’s request that the jury beinstructed that it must find that the defendant knew theobject he possessed was a weapon and not merely alighter, stating that Penal Law 265.01(1) was a strict liabil-ity statute. The court instructed the jury that the offensehad two elements, possession of a weapon and that theweapon was a switchblade, and that while the defendanthad to know he had the item, he did not have to know theprecise nature of it.
Holding: The court erred in failing to instruct the jurythat the prosecution must prove beyond a reasonabledoubt that the defendant knowingly and voluntarily pos-sessed a knife. Penal Law article 15 requires that a defen-dant be aware of physically possessing a prohibited objectto be convicted. Case law interpreting Penal Law 265.01(1)and the legislative history of that section and its predeces-sor statute (former Penal Law 1897) show that possessionof a weapon must be knowing and voluntary. See People vPersce, 204 NY 397, 402; People v Saunders, 85 NY2d 339,341-342. “Where the nature of the object possessed fails toprovide notice to the possessor that the object may be sub-ject to government regulation or prohibition, it would vio-late principles of due process to allow a conviction with-out proof of mental culpability . . . .” An element of know-ing possession of a weapon must be read into the statute.See People v Small, 157 Misc 2d 673, 681. Judgmentreversed and matter remanded for a new trial. (SupremeCt, New York Co [McLaughlin, J])
Family Court (General) FAM; 164(20)
Jurisdiction (Personal) JSD; 227(5)
Matter of Kiesha G.-S. v Alphonso S., 57 AD3d 289, 870 NYS2d 240 (1st Dept 2008)
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The court denied the respondent’s motion to vacate afive-year order of protection on behalf of the petitionerand the parties’ children, which was entered on default.
Holding: The record does not include documentationshowing that the respondent, who is incarcerated, wasserved with the summons to appear at the family offenseproceeding. See Chase Manhattan Bank v Carlson, 113 AD2d734, 735. While the record contains an order to produce,there is no evidence that the order was served or that therespondent was told that he had to request to be pro-duced. See Matter of Jung, 11 NY3d 365. Even if service andnotice were properly given, the motion should be granted.The respondent’s attempt to respond to the proceedingwhen he was made aware of it shows that his failure toappear was not willful and provides a reasonable excuseto vacate the default. See Matter of Precyse T., 13 AD3d1113. The respondent also raised viable arguments chal-lenging the sufficiency of the petitioner’s contentions andthere is no indication that the petitioner would be preju-diced should the respondent be relieved of the default.Order reversed, motion granted, and matter remanded fora hearing to determine whether the court has personaljurisdiction over the respondent. (Family Ct, Bronx Co[Cordova, J])
Trial (Confrontation of Witnesses) TRI; 375(5) (15)(General)
Witnesses (Confrontation of WIT; 390(7) (11) Witnessess) (Cross Examination)
People v Wrotten, 60 AD3d 165, 871 NYS2d 28 (1st Dept 2008)
The defendant was charged with assaulting the com-plainant. The defendant had briefly cared for the com-plainant’s wife as a home health aide. Over the defen-dant’s objection, the court granted the prosecution’smotion to present the complainant’s testimony by televi-sion because the complainant could not travel from hiscurrent home in California to New York without serious-ly endangering his health. During his testimony, the com-plainant was able to see the courtroom and could hear thecourtroom proceedings, and people in the courtroomcould see and hear the complainant.
Holding: “[T]he admission of the two-way, televisedtestimony is not only unauthorized by either theLegislature or the inherent powers of the Judiciary, it isclearly, albeit implicitly, prohibited by the relevant provi-sions of the Criminal Procedure Law.” Judiciary Law 2-b(3) allows courts to adopt new process and forms of pro-ceedings to those that are necessary to carry into effect thepowers and jurisdiction possessed by them; this does notinclude the power to make substantive policy decisions
about when to permit the receipt of live, two-way, tele-vised testimony of witnesses in criminal cases. Such adecision is properly determined by the Legislature. Evenassuming that the inherent powers of the judiciary wouldhave authorized such televised testimony, by enactingCPL article 65, the Legislature precluded courts from exer-cising that authority. Article 65 is a comprehensive leg-islative scheme based on crucial policy judgments and thejudiciary is bound to conclude that legislative policy judg-ments are considered ones. The comprehensive legislativescheme is also seen in CPL articles 680 and 660, whichprovide further restrictions on the presentation of testi-mony at trial of a witness who is not physically present inthe courtroom. This purely legal issue merits review bythe Court of Appeals. Judgment reversed and matterremanded for a new trial. (Supreme Ct, Bronx Co [Barrett,J (application for televised testimony); Silverman, J (wit-ness availability hearing, jury trial, and sentence)])
Dissent: [Friedman, J] Because the prosecution satis-fied the standard in Maryland v Craig (497 US 836 [1990]),the complainant’s testimony did not violate the defen-dant’s right of confrontation. The court properly exercisedits discretion, pursuant to Judiciary Law 2-b(3) and itsinherent powers, to determine what steps, if any, could betaken to permit the prosecution to proceed despite thecomplainant’s inability to be physically present in thecourtroom. CPL articles 65, 660, and 680 do not reflect anypolicy determination about the propriety of allowing tele-vised testimony by a witness whose physical conditionrenders him unable to testify in person.
Counsel (Competence/Effective COU; 95(15)Assistance/Adequacy)
People v Fleming, 58 AD3d 527, 872 NYS2d 21 (1st Dept 2009)
Holding: “Defendant did not receive effective assis-tance of counsel. The existing record establishes that trialcounsel’s overall performance was prejudicially deficient(see People v Droz, 39 NY2d 457 [1976]). Counsel demon-strated her lack of basic comprehension of criminal lawand procedure through her persistent frivolous conduct atmultiple stages of the proceeding, including, among otherthings, pretrial motion practice, a purported interlocutoryappeal, the suppression hearing, requests for jury instruc-tions, posttrial motions and sentencing. Counsel’s woefullack of knowledge approached the traditional ‘farce and amockery of justice’ standard (see People v Tomaselli, 7 NY2d350, 353-354 [1960]). This case presented an issue ofwhether defendant was aware of the illicit contents of apackage he accepted in a controlled postal delivery.Counsel completely and prejudicially misunderstood andmishandled this issue, and defendant was deprived of afair trial as a result. We find counsel’s unfamiliarity withthe sentencing parameters for defendant’s crime particu-
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larly troubling in view of the fact that before trial defen-dant received a beneficial plea offer of three to nineyears.” Judgment reversed and matter remanded for anew trial. (Supreme Ct, Bronx Co [Globerman, J])
Sentencing (Pronouncement) SEN; 345(70) (70.5)(Resentencing)
People v Hernandez, 59 AD3d 180, 872 NYS2d 455 (1st Dept 2009)
Holding: The court properly resentenced the defen-dant to a seven-year determinate prison term with fiveyears of post-release supervision (PRS). The defendantwas originally sentenced to a seven-year determinateterm. After six years, he was granted conditional releaseand began serving an administratively-imposed five-yearterm of PRS. In People v Sparber (10 NY3d 457, 469, 471-472), and Matter of Garner v New York State Dept ofCorrectional Servs (10 NY3d 358, 363 n4), the Court ofAppeals emphasized that sentencing courts retain author-ity to correct procedural sentencing errors even after theone year following conviction afforded the prosecution toseek resentencing under CPL 440.40. And the Legislatureenacted a procedural framework for resentencing defen-dants whose convictions required a mandatory term ofPRS that had not been properly imposed (see CorrectionLaw 601-d), which the court followed. The resentencingdid not violate double jeopardy or due process. Thedefendant had no legitimate expectation of finality withregard to a determinate prison term without a term ofPRS. See United States v DiFrancesco, 449 US 117, 138-139(1980). The defendant understood that his sentenceincluded a term of PRS because he actually served threeyears of PRS before he was resentenced and he could nothave a legitimate expectation of finality of a sentence thatis contrary to law. His resentencing did not offend notionsof fundamental fairness because he was resentenced tothe original seven-year determinate term and the requiredterm of PRS. Judgment affirmed. (Supreme Ct, New YorkCo [Obus, J])
Juries and Jury Trials (Challenges) JRY; 225(10) (55)(Selection)
People v James, 59 AD3d 217, 874 NYS2d 24 (1st Dept 2009)
Holding: “The court properly denied defendant’sapplication pursuant to Batson v Kentucky (476 US 79[1986]). Immediately after the court mentioned the loca-tion of the crime, the panelist at issue spontaneously vol-unteered that she lived in that area. Although the panelistthen assured the court that this would not be a problem,
the prosecutor later explained that he challenged this pan-elist because she had initially volunteered her concernabout her proximity to the crime and had been particular-ly vocal on the subject. The record supports the court’sfinding that the nondiscriminatory reason provided bythe prosecutor was not pretextual. This finding, whichessentially involved an assessment of the prosecutor’scredibility, is entitled to great deference (see People vHernandez, 75 NY2d 350 [1990], affd 500 US 352 [1991]).”Judgment affirmed. (Supreme Ct, New York Co [Stone, J])
Admissions (Interrogation) ADM; 15(22) (37)(Spontaneous Declaration)
Counsel (Attachment) (Right to COU; 95(9) (30)Counsel)
People v Ramirez, 59 AD3d 206, 873 NYS2d 56 (1st Dept 2009)
Holding: The court properly denied the defendant’smotion to suppress the statements he made to a policereceptionist. The defendant approached the receptionistas she was taking a break outside the police station andtold her in Spanish that he “wanted” and “needed” alawyer. The Spanish-speaking receptionist told the defen-dant that he was at a police station, not a law office, andasked if she could help him. The defendant then said thathe had just shot the decedent in the eye. When the recep-tionist asked where the gun was, the defendant told herwhere he had discarded it. The defendant’s statement isadmissible because he did not make an unequivocalrequest for counsel; it was not clear why he wanted alawyer until he made the statement. Even if the defendanthad invoked his right to counsel, the admission was spon-taneous (see People v Campney, 94 NY2d 307), and the sur-rounding circumstances show that it was not made in aninterrogation environment. The receptionist’s questionabout the location of the gun was proper under the publicsafety exception. See New York v Quarles, 467 US 649, 655-656 (1984). After his arrest, one officer asked another “Hasthis guy been tossed for a gun” and the defendantresponded in English that he discarded the gun. Thisstatement, which was not introduced at trial, was alsospontaneous and the recovery of the gun was not the fruitof the statement. Judgments affirmed. (Supreme Ct, NewYork Co [Yates, J])
Counsel (Right to Counsel) COU; 95(30) (39)(Standby and Substitute Counsel)
Guilty Pleas (General [Including GYP; 181(25) (65)Procedure and Sufficiency of Colloquy]) (Withdrawal)
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People v Branham, 59 AD3d 244, 873 NYS2d 280 (1st Dept 2009)
Holding: The court erred in denying the defendant’srequest for new counsel without giving him an opportu-nity to explain the request. At the suppression hearing,the court denied the defendant’s request to address thecourt. When the defendant stated that he and his attorneyhad a conflict of interest, the court stated that it was “nottaking that application.” It is clear that the court under-stood that the defendant was asking for new counsel, butdenied the request without allowing the defendant to pro-vide information about the conflict. Even if the defen-dant’s request was a delay tactic or the conflict related todissatisfaction with his attorney, the court may not denythe application without hearing an explanation. See Peoplev Sides, 75 NY2d 822. The court improperly denied thedefendant’s pro se motion to withdraw his plea at sen-tencing without making further inquiry. The motionalleged that the plea was involuntary because the defen-dant did not know he had a valid defense to the charges.Under the circumstances, the defendant’s allegation war-ranted an inquiry. Compare People v Frederick, 45 NY2d 520.The plea allocution raised an affirmative defense to thefirst-degree robbery charges when the defendant statedthat he had simulated a firearm (see People v Pariante, 283AD2d 345), and based on the suppression hearing testi-mony, it appears that the use of a simulated firearm wasthe prosecution’s theory of the case. “[W]e also note thatdefense counsel inappropriately disparaged defendant’splea withdrawal motion (People v Vasquez, 70 NY2d 1[1987]).” Judgment reversed, plea vacated, and matterremanded for further proceedings. (Supreme Ct, NewYork Co [White, J])
Juries and Jury Trials JRY; 225(10) (37) (55)(Challenges) (General) (Selection)
People v Gordon, 59 AD3d 268, 873 NYS2d 578 (1st Dept 2009)
Holding: The court erred in allowing the prosecution,after defense counsel exercised his peremptory chal-lenges, to exercise a peremptory challenge to a panelistwho had been accepted by the defendant and seated as ajuror. Criminal Procedure Law 270.15(2) precludes theprosecution from challenging a prospective juror whoremained in the jury box after the defendant exercised hisor her peremptory challenges. Because the defendant wasdeprived of a juror he wanted to be seated and the courtdid not give him a remedy, such as allowing him to re-exercise his peremptory challenges, the defendant wassignificantly prejudiced and must receive a new trial. See
People v McQuade, 110 NY 284; compare eg People v Levy, 194AD2d 319, 320-321 app dism 82 NY2d 890. Judgmentreversed and matter remanded for a new trial. (SupremeCt, New York Co [McLaughlin, J])
Narcotics (Cocaine) (Possession) NAR; 265(5) (57)
Search and Seizure (Warrantless SEA; 335(80[f] [k])Searches [Moveable Objects] [Plain-view Objects])
People v Mayo, 59 AD3d 250, 873 NYS2d 584 (1st Dept 2009)
The police followed a male suspect into an apartment.They saw a woman come out of the back bedroom andwhen they entered that room, the defendant was puttingon his pants and his father was sitting on the bed. A clearbag holding 47 small green ziploc bags containing awhite, rocky substance was in plain view on a dresser.There were empty ziploc bags in several rooms. After thedefendant and his father were removed, the police talkedabout having the children who were present removed bythe Administration for Children’s Services. One of the twowomen present, the legal tenant and girlfriend of thedefendant’s father, told the police that she knew why theywere there and pointed to a spot on the bedroom floor.Out of sight under a pair of men’s jeans were two plasticbags that held the same type of green ziploc bags as thoseon the dresser, also containing a white, rocky substance.The court granted the defendant’s motion to dismisscounts two and three of the indictment, which related tothe cocaine found under the jeans.
Holding: The court erred in granting the defendant’smotion to dismiss. Based on the room presumption, thegrand jury could have reasonably concluded that thedefendant possessed the bag on the dresser and that hepossessed the contents of the bags under the jeans. Theziploc bags under the jeans were the same color as thoseon the dresser, the defendant was close to all three bags,the room was small and in the rear of the apartment, andthere were only four people in there who could havedominion and control over the bags. The grand jury couldreasonably infer that the tenant who led the police to theother bags did not exercise dominion and control overthem. Although the defendant and his father did not livein the apartment, his connection to the apartment was nottenuous. Order reversed, motion to dismiss denied, andcounts two and three reinstated. (Supreme Ct, New YorkCo [Ward, J])
Dissent: [Acosta, J] “[T]he majority extends the roompresumption to drugs not in plain view. Given theabsence of evidence that respondent exercised dominionand control over the apartment, this extension dangerous-ly casts too wide a net of criminality.”
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Sentencing (Concurrent/ SEN; 345(10) (70.5)Consecutive) (Resentencing)
People v Taveras, 59 AD3d 264, 873 NYS2d 296 (1st Dept 2009)
Holding: The court correctly granted the defendant’sCPL 440.20 motion to set aside the sentence on his briberyconviction and properly exercised its discretion when itimposed the minimum lawful sentence for that convictiondirecting that it be served consecutively to the defendant’sother sentences. The procedure that the court used todetermine that the defendant was eligible for consecutivesentences did not violate Apprendi v New Jersey (530 US466 [2000]). In resentencing the defendant, the court didnot engage in fact-finding; it “made, implicitly, a legaldetermination based upon facts already found by the jury(see People v Lloyd, 23 AD3d 296 [2005], lv denied 6 NY3d755 . . . ). Under Penal Law § 70.25, a jury’s finding that adefendant committed more than one offense is sufficientto permit the court to impose consecutive sentences,unless the court either makes (where permitted) a discre-tionary determination to impose concurrent sentences ora legal determination that concurrent sentences arerequired.” Judgment affirmed. (Supreme Ct, New York Co[Wetzel, J])
Search and Seizure (Arrest/Scene SEA; 335(10[g])of the Crime Searches [Probable Cause])
Traffic Infractions (General) TFI; 372(15)
People v Tolentino, 59 AD3d 298, 873 NYS2d 602 (1st Dept 2009)
Holding: The court correctly denied the defendant’smotion to suppress Department of Motor Vehicle (DMV)records regarding the suspension of his driver’s licensewithout a hearing. The police obtained the records afterthey obtained the defendant’s pedigree information dur-ing an unlawful vehicular stop. “Although a defendantneed not establish a privacy interest in an alleged fruit ofa preexisting violation of his or her Fourth Amendmentrights, we agree with those courts (see e.g. People v Cobb,182 Misc 2d 808 [Crim Ct, Kings County 1997]) that haveconcluded that DMV records are not suppressible fruits.‘The . . . identity of a defendant . . . is never itself sup-pressible as a fruit of an unlawful arrest . . .’ (Immigration& Naturalization Serv. v Lopez-Mendoza, 468 US 1032, 1039[1984]). Thus, ‘there is no sanction to be applied when anillegal arrest only leads to discovery of [a person’s] iden-tity and that merely leads to the official file’ (United Statesv Guzman-Bruno, 27 F3d 420, 422 [9th Cir 1994], cert denied
513 US 975 [1994] [internal quotation marks omitted]).Furthermore, the DMV records were compiled independ-ently of defendant’s arrest (see People v Pleasant, 54 NY2d972, 973-974 [1981], cert denied 455 US 924 [1982] . . . ).”Judgment affirmed. (Supreme Ct, New York Co [Uviller, J])
Appeals and Writs (General) APP; 25(35) (45)(Judgments and Orders Appealable)
Guilty Pleas (General [Including GYP; 181(25)Procedure and Sufficiency of Colloquy])
People v Williams, 59 AD3d 339, 874 NYS2d 63 (1st Dept 2009)
Holding: The defendant’s purported waiver of hisright to appeal was invalid because the court conflated theright to appeal with those rights automatically forfeitedby pleading guilty. “Although our independent reviewestablishes that the search warrant was supported byprobable cause, we write simply to focus attention on therecurrent fusing, during allocution, of the defendant’sright to appeal (in this case, his right to appeal the orderdenying his suppression motion) with those rightswaived by a guilty plea in cases where waiving the rightto appeal is a condition of the plea bargain.” The courtmust inform the defendant of the right to appeal and elic-it on the record that the defendant is voluntarily, know-ingly, and intelligently waiving that right as a condition oftaking the plea. “The record must establish, for example,that the defendant understood that the right to appeal isseparate and distinct from those rights automatically for-feited upon a plea of guilty . . . .” The court should havetold the defendant that a guilty plea does not, by itself,waive or prevent review of an order denying a motion tosuppress evidence. See CPL 710.70(2). The court failed toask the defendant if he spoke to his attorney about theappeal waiver, and the defendant did not sign a writtenwaiver. And, at sentencing, the court informed the defen-dant of his right to appeal and the prosecution anddefense counsel did not mention that the defendantwaived that right. Judgment affirmed. (Supreme Ct,Bronx Co [Cirigliano, J])
Housing (General) HOS; 186(15)
Prosecutors (General) PSC; 310(20)
Perdomo v Morgenthau, 60 AD3d 435, 874 NYS2d 443 (1st Dept 2009)
Holding: The court properly granted the plaintiff’smotion for a declaration that the defendant district attor-ney does not have the authority to require his approval ofa settlement agreement between a landlord and tenant in
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an illegal use eviction proceeding that was brought pur-suant to Real Property and Proceedings Law (RPAPL) 715at the direction of the district attorney. “Although theDistrict Attorney, when acting under RPAPL 715, is serv-ing the public welfare, he may not do so in a manner thatexceeds his statutory grant of authority. The plain mean-ing of RPAPL 715 does not provide the District Attorneythe authority to supervise or veto settlements between theparties to an illegal use holdover proceeding broughtunder the statute. Nor is such authority granted by impli-cation, as it is not necessary to the performance of thoseacts by the District Attorney which the statute does sanc-tion . . . .” If the district attorney believes that a landlordor owner is not diligently prosecuting the proceeding ingood faith, the district attorney may commence aholdover proceeding. See RPAPL 715(1). Judgmentaffirmed. (Supreme Ct, New York Co [Goodman, J])
Juries and Jury Trials (Challenges) JRY; 225(10) (55)(Selection)
People v Sanchez, 60 AD3d 442, 874 NYS2d 461 (1st Dept 2009)
Holding: The court erred in denying the defendant’schallenge for cause to a prospective juror. The defendantwas charged with the sale of drugs to an undercover nar-cotics officer, and the only police testimony came from theundercover officer, his ghost, and the arresting officer. Thejuror, whose son is a retired undercover narcotics officerwho was shot in the line of duty, repeatedly expressed apredisposition to credit police testimony. She expresseddoubt that an undercover officer could lie or be mistakenand she discussed her concerns about drugs and violencein her building and neighborhood. The juror never gaveunequivocal assurance that she would put aside herbeliefs and render an impartial verdict based on the evi-dence. See People v Johnson, 94 NY2d 600, 614. “‘[T]he trialcourt should lean toward disqualifying a prospectivejuror of dubious impartiality, rather than testing thebounds of discretion by permitting such a juror to serve. . . .’ (People v Branch, 46 NY2d 645, 651-652 [1979]).”Judgment reversed, conviction vacated, and matterremanded for a new trial. (Supreme Ct, New York Co[Goldberg, J])
Second Department
Appeals and Writs (Briefs) APP; 25(15) (30)(Counsel)
Counsel (Anders Brief) COU; 95(7) (15)(Competence/Effective Assistance/Adequacy)
Juveniles (Neglect) JUV; 230(80)
Matter of Kathleen K., 56 AD3d 673, 871 NYS2d 156(2nd Dept 2008)
Holding: The appellant’s counsel filed an Anders brief(Anders v California, 386 US 738 [1967]) and requested to berelieved as counsel. An independent review of the recordreveals potentially nonfrivolous issues, including“whether the finding of neglect was supported by a pre-ponderance of the evidence, including evidence that thechildren’s emotional health had been impaired or was inimminent danger of becoming impaired (see Family CtAct §§ 1012[f][i], 1046[b][1]), whether the Family Courtimprovidently exercised its discretion in denying theappellant’s request for substitution of counsel withoutconducting any inquiry into the basis for his dissatisfac-tion with assigned counsel, and whether the appellantwas afforded effective assistance of counsel.” Counselrelieved and directed to turn over all papers to new coun-sel and briefing schedule set. (Family Ct, Suffolk Co[Tarantino, Jr, J])
Homicide (Negligent Homicide) HMC; 185(45)
Motor Vehicles (Reckless Driving) MVH; 260(20)
People v McGrantham, 56 AD3d 685, 868 NYS2d 219(2nd Dept 2008)
The defendant drove the wrong way on an exit rampleading to a parkway, passing “do not enter” and “oneway” warning signs. After realizing his mistake, he madea slow right turn across the parkway to loop around andface the correct direction of traffic. When his car was per-pendicular to the direction of traffic, he collided with amotorcyclist, causing the motorcyclist’s death. The defen-dant had not been drinking or speeding.
Holding: The court erred in granting the defendant’smotion to dismiss the criminally negligent homicide andreckless driving counts. The grand jury evidence, ifaccepted as true, was sufficient to show that the defendantacted with criminal negligence. Although a traffic viola-tion alone cannot constitute an act of criminal negligence(see People v Senisi, 196 AD2d 376, 379), a violation com-bined with additional relevant factors may establish crim-inal negligence. See People v LaFantana, 277 AD2d 395. Thedefendant chose to drive perpendicular and across threelanes of traffic on a busy highway at a very slow speedinstead of using the available paved and grassy shoulderareas to correct his direction; this constitutes a gross devi-ation from the standard of care that a reasonable personwould use in the situation. See Penal Law 15.05(4); Peoplev Fuentes, 27 AD3d 481. The grand jury evidence was alsosufficient to support the reckless driving count. Thedefendant’s conduct demonstrated that he unreasonablyendangered users of the public highway. See Vehicle and
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Traffic Law 1212. Order reversed, motion to dismisscounts one and two denied, and those counts are rein-stated. (Supreme Ct, Kings Co [Murphy, J])
Dissent: [Belen, J] The defendant’s failure to perceivethe risk cannot be seen as morally blameworthy (seePeople v Cabrera, 10 NY3d 370); it is not clear that thedefendant, having mistakenly entered the parkway viathe exit ramp due to concededly confusing signs, hadanother intelligent or prudent option.
Sentencing (Hearing) (Second SEN; 345(42) (72)Felony Offender)
People v Smith, 56 AD3d 695, 871 NYS2d 159 (2nd Dept 2008)
Holding: The court erred in adjudicating the defen-dant a second felony offender. The prosecution filed aCPL 400.21 statement alleging that the defendant had apredicate felony conviction in federal court. The defen-dant argued that the conviction was unconstitutionallyobtained because, at the time of his plea, he was under theinfluence of drugs and told the federal judge of this inopen court. The defendant requested a copy of the pleaminutes and the court adjourned the matter for eightdays. On the adjourned date, the defendant stated that hehad not received the minutes yet. The court revealed thatits chambers contacted the defendant’s federal court attor-ney and the federal judge who took the plea. Both report-ed that, to the best of their recollection, the defendant wasnot under the influence of drugs, alcohol, or anything elseat the time of the plea. The court, finding the attorney andthe judge credible and the defendant incredible, rejectedthe defendant’s claim and adjudicated him a secondfelony offender. The court improperly rejected the defen-dant’s claim based on the information it obtained private-ly from the attorney and the federal judge. The defendanthad no opportunity to confront them and to the extentthat the court used their statements to prove the truth ofthe assertion that the defendant was not under the influ-ence of drugs, the statements were hearsay and notadmissible under CPL 400.21(7)(a). Sentence reversed,second felony offender adjudication vacated, and matterremitted for resentencing before a different justice.(Supreme Ct, Kings Co [Collini, J])
Counsel (Conflict of Interest) COU; 95(10) (30)(Right to Counsel)
People v Kirkorov, 57 AD3d 568, 870 NYS2d 47 (2nd Dept 2008)
Holding: The court did not deny the defendant hisright to the counsel of his choice by disqualifying one of
his attorneys. See People v Hall, 46 NY2d 873, 874-875 certden 444 US 848 (1979). The disqualified attorney previous-ly defended another attorney who had represented a pros-ecution witness. The disqualified attorney told the courtthat he believed he could use information he learnedabout the substance of conversations between the prose-cution witness and his former attorney in the defendant’sdefense. The court, in granting the prosecution’s applica-tion to disqualify the attorney, properly concluded thatthe representation posed a conflict of interest. Judgmentaffirmed. (Supreme Ct, Queens Co [McGann, J])
Juveniles (Visitation) JUV; 230(145)
Matter of Hermanowski v Hermanowski, 57 AD3d 777,869 NYS2d 587 (2nd Dept 2008)
Holding: The court properly granted the father’s peti-tion to modify the parties’ judgment of divorce to awardhim four consecutive weeks of summer visitation and vis-itation during alternate school recesses, and to permit himto travel with the child outside of the country. The parties’judgment of divorce incorporated their stipulation of set-tlement in which the mother was given custody of thenthree-year old daughter and the father was given a visita-tion schedule. The father met his burden of showing thatthere was a subsequent change of circumstances and thatthe modifications sought were in the child’s best interest.See Family Court Act 467(b), 652(b); Matter of Wilson vMcGlinchey, 2 NY3d 375, 380-381. The father moved toOhio for work and could not take full advantage of theoriginal visitation schedule. And the child, 11 years oldwhen the father filed the petition, was in favor of in-creased visitation with him. The hearing evidence demon-strated that the modifications sought were in the child’sbest interest and there is no basis for disturbing the deter-mination that the father should be permitted to travelwith the child out of the country. See Matter of Puran vMurray, 37 AD3d 472. Order affirmed. (Family Ct, SuffolkCo [Boggio, R])
Juveniles (Hearings) (Paternity) JUV; 230(60) (100)
Matter of Philip K. v Thervey B., 57 AD3d 781, 870 NYS2d 388 (2nd Dept 2008)
Holding: The court erred in dismissing the paternitypetition solely on the basis of the genetic test report. SeeMatter of Donald I. v Teresa K., 221 AD2d 862. The petition-er commenced a paternity proceeding alleging that hewas the father of the respondent’s child. According to thecourt-ordered genetic test report, the petitioner wasexcluded as the father. The support magistrate dismissedthe petition with prejudice, rejecting the petitioner’s claimthat the report was not complete. The following month,the court denied his objections to the support magistrate’s
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order. The genetic test report was not admitted into evi-dence (compare Matter of Liduvina F. v Orlando A.M., 295AD2d 234), and because Family Court Act 531 providesfor a non-jury trial in paternity proceedings, the courtshould have given the petitioner the opportunity to pres-ent evidence at a trial, including any evidence related tothe report. Order denying objections reversed, objectionssustained to the extent that the order dismissing the peti-tion is vacated, petition reinstated, and matter remitted.(Family Ct, Richmond Co [McElrath, J (order denyingobjections); Weir-Reeves, SM (order dismissing petition)])
Self-Incrimination (General) SLF; 340(13)
Witnesses (Confrontation of WIT; 390(7) (11)Witnesses) (Cross Examination)
People v Visich, 57 AD3d 804, 870 NYS2d 376 (2nd Dept 2008)
The defendant was convicted of second-degree murderfor hiring Thon to murder his wife. The defendant contact-ed Thon through Cassatt. Thon testified pursuant to acooperation agreement and admitted to the murder.Cassatt admitted that he put the defendant in contact withThon, but denied knowledge of or involvement in the mur-der. On cross-examination of Thon and Cassatt, defensecounsel asked whether they had been involved, either sep-arately or together, in prior crimes, including murder, forwhich they had not been tried or convicted. The witnessesrefused to answer the questions and invoked their privilegeagainst self-incrimination. The court denied the defen-dant’s request to strike the witnesses’ direct testimony, butdid charge the jury that the invocation of the privilegecould be considered in determining credibility.
Holding: The court did not err by refusing to strikethe witnesses’ direct testimony. In determining whetherthe defendant’s right to confrontation has been denied,the ultimate question is whether the defendant’s inabilityto test the accuracy of the witness’ direct testimony hascreated a substantial risk of prejudice. This depends, atleast in part, on the defendant’s ability to make theimpeachment argument without the excluded evidence.See People v Chin, 67 NY2d 22, 28. The court has wide dis-cretion in crafting a corrective response when a witnessinvokes the self-incrimination privilege. See People v Siegel,87 NY2d 536. The court properly exercised its discretionand there was no risk of substantial prejudice because thedefendant was able to cross-examine the witnesses aboutthe crimes at issue, argue on summation the inferences tobe drawn from the invocation of the privilege, andexplore, using other evidence, each witness' bias andmotivation to testify falsely. Judgment affirmed. (CountyCt, Rockland Co [Kelly, J])
Juveniles (Support Proceedings) JUV; 230(135)
Matter of Gravenese v Marchese, 57 AD3d 992, 870 NYS2d 444 (2nd Dept 2008)
Holding: The support magistrate erred in grantingthe mother’s petition for an upward modification of thefather’s child support obligation. When seeking to modi-fy a prior support order, the petitioner bears the burden ofdemonstrating that there has been a substantial change incircumstances, which is measured by comparing thepayor’s financial situation at the time of the modificationpetition to the situation at the time of the existing order orjudgment. See Matter of Talty v Talty, 42 AD3d 546, 547. Tofind a substantial change in circumstances, the supportmagistrate would have had to impute income or financialability to the respondent. While support magistrates havediscretion in determining whether to impute income (seeMatter of Genender v Genender, 51 AD2d 669), the recordmust clearly indicate the source from which the income isimputed and the reasons for imputation. See Matter ofBarnett v Ruotolo, 49 AD3d 640, 640. The support magis-trate failed to specify the amount of income imputed tothe respondent, the source from which the income mighthave been derived, and the reason for imputing income.Because of other errors made in determining the petition,the matter cannot be remitted to the support magistrate.The father’s assertion in a visitation proceeding that hewas ready to resume parental responsibilities did notestablish his ability to pay the increased child support.Order denying respondent’s objections reversed, objec-tions sustained, support magistrate’s order vacated, andmatter remitted. (Family Ct, Nassau Co [Dane, J (ordersustaining objections); Watson, SM (order granting peti-tion)])
Attorney/Client Relationship ACR; 51(10) (20)(Confidences) (General)
Constitutional Law (United States CON; 82(55)generally)
Speech, Freedom Of (General) SFO; 353(10)
Matter of Vinluan v Doyle, 60 AD3d 237, 873 NYS2d 72(2nd Dept 2009)
The petitioner nurses were indicted after they simul-taneously resigned from positions at a nursing home, andthe petitioner attorney who provided them with legaladvice was indicted. The supreme court denied the peti-tioners' motions to dismiss. This CPLR article 78 proceed-ing in the nature of prohibition was brought against theDistrict Attorney and the judge, who elected not toappear.
Holding: The prosecutions are an impermissibleinfringement on the petitioners’ constitutional rights. The
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prosecution of the nurses violates the ThirteenthAmendment’s proscription against involuntary servitudebecause it seeks to impose criminal sanctions on them forresigning their positions. See eg Pollock v Williams, 322 US4 (1944). And the prosecution of the attorney violates hisconstitutionally protected rights of expression and associ-ation in violation of the First and Fourteenth Amend-ments. “[A]n attorney has a constitutional right to providelegal advice to his clients within the bounds of the law (seeMatter of Primus, 436 US 412, 432 [1979] . . .).” By placingthe attorney in the position of defending the advice pro-vided, the state compels revelation of confidential attor-ney-client communications. Therefore, the act of prosecut-ing the petitioners is an excess in power for which prohi-bition is an available remedy. See Matter of Rush v Mordue,68 NY2d 348, 352. Prohibition is an appropriate becausethe petitioners are threatened with prosecution for crimesfor which they cannot be constitutionally tried and thepotential harm is so great and the ordinary appellateprocess is so inadequate to redress that harm. Petitiongranted, respondent District Attorney prohibited fromprosecuting the petitioners, and respondent judge is pro-hibited from presiding over the matter.
Impeachment (General) IMP; 192(15)
Witnesses (Credibility) (Cross WIT; 390(10) (11)Examination)
People v Brewer, 58 AD3d 748, 871 NYS2d 672 (2nd Dept 2009)
Holding: The defendant is entitled to a new trialbecause the court improperly denied the defendant’sapplication to recall the complainant. The defendantsought to impeach the complainant’s credibility on amaterial issue in the case, not a purely collateral matter.See People v Perez, 40 AD3d 1131. Under the circumstances,the error cannot be deemed harmless. See People vCrimmins, 36 NY2d 230, 241-242. Judgment reversed andnew trial ordered. (County Ct, Westchester Co [Walker, J])
Sex Offenses (General) (Sentencing) SEX; 350(4) (25)
People v Damato, 58 AD3d 819, 873 NYS2d 116 (2nd Dept 2009)
The defendant was originally designated a level onesex offender. After he was reincarcerated for violating cer-tain probation conditions, the prosecution moved for anupward modification of his risk level to level three.
Holding: The court erred in granting the prosecu-tion’s motion and designating the defendant a level threeoffender. The prosecution failed to file a petition setting
forth the level of notification sought, together with thereasons for seeking such determination, as required byCorrection Law 168-o(3). The court failed to seek theinvolvement of the Board of Examiners of Sex Offenders,in violation of Correction Law 168-o(4). And the court didnot hold the statutorily required hearing. Because of theseerrors, the defendant must be designated a level oneoffender. The prosecution is not barred from seeking anupward modification by filing a petition pursuant toCorrection Law 168-o(3). Order reversed, motion forupward modification denied, and the defendant is desig-nated a level one sex offender. (County Ct, Suffolk Co[Braslow, J])
Assault (Defenses) (Evidence) ASS; 45(20) (25) (27)(General)
People v Valencia, 58 AD3d 879, 873 NYS2d 97 (2nd Dept 2009)
Holding: The trial evidence was legally insufficient toestablish that the defendant acted with depraved indiffer-ence to human life when he collided with the com-plainants’ cars, and therefore did not support the first-degree assault conviction. See Penal Law 120.10(3); Peoplev Feingold, 7 NY3d 288. The prosecution’s argument thatthe mens rea element of depraved indifference assault canbe satisfied by considering the defendant’s state of mindat a point much earlier than the accident, when the defen-dant allegedly made the conscious decision to drink anexcessive amount of alcohol with the understanding thathe would later operate a car, is unpersuasive. Even assum-ing that the evidence would support such a finding andthat this state of mind would satisfy the culpable mentalstate of depraved indifference to human life, the defen-dant’s state of mind when he consumed the alcohol wastoo temporally remote from when he drove the car to sup-port the conviction. Judgment modified by vacating first-degree assault conviction, vacating the sentence on thatcount, and dismissing that count of the indictment, andjudgment affirmed as modified. (Supreme Ct, Nassau Co[Peck, J])
Concurrence in Part, Dissent in Part: [Dillon, J] In adepraved indifference case, the mens rea and the actusreus do not need to be simultaneous. See gen People v Kibbe,35 NY2d 407; People v Wells, 53 AD3d 181. Under the cir-cumstances, the defendant’s voluntary intoxication didnot negate the element of depraved indifference to humanlife. Cf People v Castellano, 41 AD3d 184, 185.
Counsel (Right to Counsel) (Waiver) COU; 95(30) (40)
Family Court (General) (Violation FAM; 164(20) (60)of Family Court Orders)
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Matter of Knight v Knight, 59 AD3d 445, 873 NYS2d 324(2nd Dept 2009)
In a family offense proceeding, the court found thatthe respondent husband violated the terms of an order ofprotection three times and incarcerated him for three con-secutive six-month terms.
Holding: Parties in a Family Court Act article 8 pro-ceeding have the right to be represented by counsel. SeeFamily Court Act 262(a)(ii). To ensure that a party hasknowingly, voluntarily, and intelligently waived the rightto counsel, the court must conduct a searching inquiry ofthe party. See People v Slaughter, 78 NY2d 485, 491. Theinquiry must show that the party knew of the dangers anddisadvantages of proceeding without counsel. See People vProvidence, 2 NY3d 579, 582. The court failed to conductthe necessary searching inquiry of the respondent andfailed to advise him of the risks of self-representation.Therefore, the respondent’s waiver of counsel was notknowing, voluntary, and intelligent. See Matter of Guzzo vGuzzo, 50 AD3d 687, 688. Order reversed and matterremitted for a new hearing and determination of the peti-tion. (Family Ct, Rockland Co [Warren, J])
Juveniles (Support Proceedings) JUV; 230(135)
Matter of Martinez v Torres, 59 AD3d 449, 871 NYS2d 916 (2nd Dept 2009)
Holding: The court properly denied the petitionerfather’s petition for a downward modification of his sup-port obligation to $0 per month and for a reduction in theamount of accrued arrears. “Contrary to the father’s con-tention, Family Court Act § 413(1)(a) does not mandatethe issuance of minimum orders of child support againstindigent noncustodial parents, and as such does not vio-late 42 USC § 667(b)(2) (see Matter of Jennifer R. v MichaelC., 49 AD3d 443; Aregano v Aregano, 289 AD2d 1081).”Order affirmed. (Family Ct, Kings Co [Grosvenor, J (orderdenying objections); Shamahs, SM (order denying peti-tion)])
Speedy Trial (Cause for Delay) SPX; 355(12) (32)(Prosecutor’s Readiness for Trial)
People v Price, 61 AD3d 127, 873 NYS2d 327 (2nd Dept 2009)
The defendant was charged in a felony complaint withattempted first-degree disseminating indecent material toa minor. About six months later, this Court held in People vKozlow (31 AD3d 788 revd 8 NY3d 554), that evidence ofthat offense is legally insufficient where the defendant’scommunications with an undercover police officer whom
he believed was a minor did not contain any visual sexualimages. Because the defendant’s case also did not involvethe communication of visual sexual images, the prosecu-tion took no further action in his case; they did not seek toadjourn it, withdraw the charge, or dismiss the complaint.After the Court of Appeals reversed in Kozlow, the prose-cution obtained an indictment, and more than 16 monthsafter the felony complaint arraignment, the defendant wasarraigned on the indictment.
Holding: The court properly granted the defendant’smotion to dismiss on speedy trial grounds. The prosecu-tion cannot avoid dismissal by invoking the “exceptionalcircumstances” exclusion in CPL 30.30(4)(g) to exclude thetime during which an appeal is pending in an unrelatedprosecution involving similar legal issues. The prosecu-tion never asked for an adjournment, and the exceptionalcircumstances exclusion relates to situations where theprosecutor has difficulty obtaining evidence or in other-wise preparing for trial in the particular case. See genPeople v Washington, 43 NY2d 772. Once they determinedthat continued prosecution was impossible, the prosecu-tion had an obligation to terminate the prosecution.“[T]he term ‘exceptional circumstances,’ as used in thatsection and as interpreted by our courts, cannot bedeemed to encompass a situation where the prosecutionindefinitely holds open a pending criminal matter, whichis ripe for dismissal, in anticipation of the possible estab-lishment of case law more favorable to its position in thefuture.” Order affirmed. (Supreme Ct, Suffolk Co [Doyle, J])
Counsel (Right to Counsel) COU; 95(30) (40)(Waiver)
Juveniles (Neglect) (Right to JUV; 230(80) (130)Counsel)
Matter of Casey N., 59 AD3d 625, 873 NYS2d 343 (2nd Dept 2009)
Holding: The court failed to conduct a searchinginquiry of the respondent mother to determine whethershe understood the dangers and disadvantages of waiv-ing her fundamental right to counsel. See People v Smith, 92NY2d 516, 521. A party in a Family Court Act article 10proceeding has a constitutional right and a statutory rightto be represented by counsel. See US Const Amend 6; NYConst Art 1, § 6; Family Court Act 262(a)(i). The courtasked the mother twice whether she wanted the assignedattorney to represent her, and made a statement generallycautioning the mother against self-representation, but didnot detail the dangers and disadvantages of doing so. Thecourt also failed to evaluate the mother’s competency towaive counsel and her understanding of the conse-quences of self-representation. See People v Arroyo, 98NY2d 101, 104. To the extent that the court delegated itsduty to conduct a searching inquiry to the mother’s
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assigned counsel, there is no authority for such action. CfPeople v Delaron, 184 AD2d 653, 654. And there is no evi-dence that the attorney conducted a searching inquiry.Order of disposition related to the mother reversed andmatter remitted for a new hearing and determination aftera proper inquiry into the mother’s understanding of theconsequences of self-representation. (Family Ct, OrangeCo [Currier Woods, J])
Counsel (Competence/Effective COU; 95(15)Assistance/Adequacy)
Family Court (Violation of Family FAM; 164(60)Court Orders)
Juveniles (Hearings) (Support JUV; 230(60) (135)Proceedings)
Matter of DeVries v DeVries, 59 AD3d 619, 875 NYS2d 488 (2nd Dept 2009)
Holding: “Although the Family Court has the discre-tion to suspend an order of commitment upon the condi-tion of continued compliance with a prior order of sup-port (see Family Court Act § 455[1]; Matter of Russo vGoldbaum, 215 AD2d 763), the Family Court may notdirect that the suspension be automatically revoked with-out notice and without a hearing upon failure to abide bythe condition (see Matter of Wolski v Carlson, 309 AD2d 759;Matter of Rogers v Rogers, 77 AD2d 818; Matter of Bailey vBailey, 34 AD2d 984).” The court did not err in denying thefather’s motion for a new hearing based on ineffectiveassistance of counsel at the contempt hearing. The father’sattorney was authorized to practice law at the time of thecontempt hearing; the attorney’s resignation from thepractice of law was not effective until months later.Therefore, the representation was permissible. See 22NYCRR 691.10. Order directing automatic revocation ofsuspension of commitment without a hearing upon futurenoncompliance reversed. (Family Ct, Orange Co [Bivona, J])
Bail and Recognizance (General) BAR; 55(27) (30) (45)(Pre- and Post-conviction) (Revocation)
Guilty Pleas (General [Including GYP; 181(25) (55)Procedure and Sufficiency of Colloquy]) (Vacatur)
People v Grant, __ AD3d __, 873 NYS2d 355 (2nd Dept 2009)
Holding: The defendant’s plea was not voluntarybecause he entered it only after the court told him that ifhe did not plead guilty, he would be remanded until his
next court appearance. Bail status has “no legitimate con-nection to the mutuality of advantage underlying a pleabargaining . . . .” The defendant must not be forced toadmit guilt and remain free or maintain innocence and goto jail. See People v Sung Min, 249 AD2d 130, 132. “[W]henthe court threatens to increase bail or remand the defen-dant unless a guilty plea is entered, any resulting pleacannot be deemed voluntary because the defendant’sdecision to plead guilty would no longer represent a freechoice among legitimate alternatives.” Although the courtmay have been justified in changing the defendant’s bailstatus because of his failure to comply with the conditionsof release, it did not change his status. It instead threat-ened to do so for no discernible reason other than toencourage him to plead guilty, which renders the pleainvoluntary. “We think that the better practice when, dur-ing plea negotiations, a defendant inquires about bail isfor the court to remind the defendant that the parties areengaged in plea bargaining, not ‘bail bargaining,’ and thatthe question of bail will be addressed only after plea nego-tiations are completed.” Judgment reversed, guilty pleavacated, and matter remitted. (Supreme Ct, Nassau Co[Peck, J])
Counsel (Competence/Effective COU; 95(15)Assistance/Adequacy)
People v Jeannot, 59 AD3d 737, 875 NYS2d 114 (2nd Dept 2009)
Holding: The defendant received ineffective assis-tance of counsel. During the cross-examination of aninvestigating officer at trial, defense counsel offered intoevidence a statement that implicated the defendant,which was made to the police by another alleged partici-pant in the crime. The defendant satisfied the standard forineffective assistance of counsel by showing that therewas no strategic or other legitimate explanation fordefense counsel’s introduction of that statement into evi-dence, which would not otherwise have been admissible.See Cruz v New York, 481 US 186 (1987); Bruton v UnitedStates, 391 US 123 (1968); People v Eastman, 85 NY2d 265.Judgment reversed and matter remitted for a new trial.(County Ct, Nassau Co [Berkowitz, J])
Counsel (Competence/Effective COU; 95(15) (20)Assistance/Adequacy) (Duties)
Post-Judgment Relief (CPL § 440 Motion) PJR; 289(15)
People v Mobley, 59 AD3d 741, 873 NYS2d 736 (2nd Dept 2009)
Holding: The court erred in denying, without a hear-ing, the portion of the defendant’s CPL 440.10 motion thatsought to vacate his conviction on the ground that he wasdenied effective assistance of counsel because his trial
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attorney allegedly failed to accurately inform him of themaximum sentence he faced if he rejected a plea offer andwas convicted after trial. This issue is properly raised in aCPL 440.10 motion and the defendant submitted an affi-davit alleging facts, which, if true would be sufficient toprevail on that claim. See United States v Gordon, 156 F3d376, 379-381 (2d Cir 1998); People v Reynolds, 309 AD2d976, 976-977. In opposing the motion, the prosecution didnot address this claim. Under the circumstances, a hearingwas warranted. The court properly denied the defen-dant’s other ineffective assistance of counsel argument,which was based on his counsel’s failure to ensure that allportions of the voir dire were recorded. The record con-tains sufficient facts to have permitted adequate appellatereview and the defendant failed to raise the issue in hisdirect appeal. See CPL 440.10(2)(c); People v Mobley, 270AD2d 504. Order modified by deleting the provisiondenying that part of the motion which was to vacate thejudgment on ineffective assistance of counsel groundsbased on counsel’s alleged failure to accurately informhim of the maximum possible sentence, order affirmed asmodified, and matter remitted for a hearing. (County Ct,Nassau Co [Ayres, J (motion); Kowtna, J (trial and sen-tence)])
Assault (Evidence) (General) ASS; 45(25) (27)
Driving While Intoxicated DWI; 130(15) (17)(Evidence) (General)
Due Process (General) (Vagueness) DUP; 135(7) (35)
People v Mojica, __ AD3d __, 874 NYS2d 195 (2nd Dept 2009)
The defendant was convicted of second-degree vehic-ular assault. The defendant’s truck hit a police car and theofficer driving the car suffered head injuries.
Holding: The rebuttable presumption in Penal Law120.03 does not violate due process and is not void forvagueness. If there is sufficient proof that the defendantcaused serious physical injury to another person whileoperating a motor vehicle while impaired or intoxicated, arebuttable presumption is raised that the serious physicalinjury is the result of such intoxication. The presumptionwas added to the statute to eliminate criminal negligenceas a required element of the offense. See L 2005, ch 39,Assembly Bill 6285B, at 3. Even assuming that the statutewould deny due process to a hypothetical defendant whodrives while intoxicated, but whose driving cannot bedeemed a proximate cause of an accident, the issue is notreached since the defendant cannot assert a due processchallenge alleging the statute is vague as applied to theconduct of others. See Broadrick v Oklahoma, 413 US 601,
608 (1973). The trial evidence was sufficient to give rise tothe rebuttable presumption; it established that the defen-dant was driving while intoxicated and that his operationof his vehicle caused serious physical injury to the officer.The statute is not void for vagueness because “the lan-guage conveys sufficiently definite warning as to the pro-scribed conduct ‘when measured by common under-standing and practices’ (People v Shack, 86 NY2d [529] at538).” And it gives clear guidance to law enforcement thata person may be arrested for violating the statute if thereis “probable cause to believe that the defendant was DWIand in doing so, operated a vehicle in a manner thatcaused serious physical injury (see People v Foley, 94 NY2d668, 680-681).” The court properly denied the defendant’sargument that the officer’s failure to wear a seat belt wasan intervening cause of his injuries since it was specula-tive and the defendant did not have an expert witnessavailable who could specify which of the officer’s injurieswould have been mitigated had he worn a seat belt. SeePeople v Del Duco, 247 AD2d 487, 488. Even if the officerwas not exempt from wearing a seat belt, it is reasonablyforeseeable that other drivers might not be wearing seatbelts, and that a broadside collision would cause seriousphysical injuries. Judgment affirmed. (County Ct,Dutchess Co [Hayes, J])
Search and Seizure (“Poisoned SEA; 335(55) (80[k])Fruit” Doctrine) (Warrantless Searches [Plain-view Objects])
People v Pearson, 59 AD3d 743, 875 NYS2d 109 (2nd Dept 2009)
Holding: The court properly granted the defendant’smotion to suppress physical evidence and his statement tothe police. The officer approached the defendant on thestreet because he was concerned that the defendant wasthe victim of a car accident. Since he did not have found-ed suspicion that criminal activity was afoot, the officercould not do more than ask for information from thedefendant. See People v Hollman, 79 AD2d 181, 184, 191-192; People v De Bour, 40 NY2d 210, 213, 219. And neitherthe initial inquiry nor the circumstances surrounding theencounter provided any indication of criminal behavior.Therefore, the officer did not have a legitimate basis forasking the defendant to get off of the bicycle on which hewas seated. The discovery of the knife after the defendantcomplied with the request cannot validate the initiallyunjustified encounter. See People v Moore, 6 NY3d 496, 498.Suppression of the defendant’s statement to the policewas required because it was the fruit of the illegal searchand seizure. See Wong Sun v United States, 371 US 471, 484(1963). Order denying reconsideration affirmed. (SupremeCt, Queens Co [Kron, J])
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Contempt (General) CNT; 85(8)
Family Court (Violation of FAM; 164(60)Family Court Orders)
Matter of Rubackin v Rubackin, __ AD3d __, 875 NYS2d 90 (2nd Dept 2009)
Holding: The court erred in applying the clear andconvincing evidence standard when determining whetherthe appellant willfully failed to obey an order of protec-tion and imposing incarceration of 30 days. Although theterm of incarceration has expired, the appeal is not aca-demic. See Matter of Er-Mei Y., 29 AD3d 1013. FamilyCourt Act 846-a lists the steps a court may take after it issatisfied by competent proof that the respondent willfullyfailed to obey an order issued under article 8. “Competentproof” refers to the nature and quality of the proof, not thequantum of proof. “When an individual is incarcerated asa punitive remedy for violating an order of protectionissued under Family Court Act article 8, the proceeding isone involving criminal contempt. The standard of proofthat must be met to establish that the individual willfullyviolated the court’s order is beyond a reasonable doubt.. . . . The prior decisions of this Court, in cases where therespondent has been committed to a term in jail pursuantto Family Court Act § 846-a, holding that the standard ofproof is one of the lesser standards, should no longer befollowed.” Because the petition alleging that a respondenthas failed to follow a lawful court order may result in afinding of civil contempt, criminal contempt, or both (seeMatter of McCormick v Axelrod, 59 NY2d 574, 583), the par-ties should be told the potential findings and applicablestandards of proof. See Yacht Shares v Knutson’s Marina, 112AD2d 419. A review of the record shows that the proofwas sufficient to establish beyond a reasonable doubt thatthe appellant willfully failed to obey the order of protec-tion. Appeal from the part of the order that directed incar-ceration dismissed as academic, order modified by delet-ing the clear and convincing evidence finding and replac-ing it with a finding, beyond a reasonable doubt, that theappellant violated the order of protection, and orderaffirmed as modified. (Family Ct, Rockland Co [Warren, J])
Due Process (Fair Trial) (General) DUP; 135(5) (7)
Harmless and Reversible Error HRE; 183.5(10) (30)(Harmless Error) (Reversible Error)
People v Bournes, 60 AD3d 687, 874 NYS2d 556 (2nd Dept 2009)
Holding: The defendant’s due process rights wereviolated when the prosecution failed to correct the police
detective’s erroneous testimony that the defendant con-fessed to committing a forcible offense, and the error wasnot harmless with regard to the first-degree rape convic-tion. See People v Steadman, 82 NY2d 1, 7-9. Because theevidence, when viewed in the light most favorable to theprosecution, was legally sufficient to establish the defen-dant’s guilt, the appropriate remedy is a new trial on thatcount. See People v Shelton, 307 AD2d 370 affd 1 NY3d 614.The defendant’s statements to the police may not be intro-duced at the new trial for any purpose, includingimpeachment. The error was harmless, however, withregard to the second-degree rape conviction; the evidenceof the defendant’s guilt of that offense, without referenceto the improper testimony, was overwhelming and thereis no reasonable possibility that the error contributed tothat conviction. See People v Crimmins, 36 NY2d 230, 237.Judgment modified, first-degree rape conviction and sen-tence vacated, judgment affirmed as modified, and newtrial ordered on first-degree rape count. (Supreme Ct,Kings Co [Marrus, J])
Family Court (General) FAM; 164(20)
Juveniles (Custody) (Visitation) JUV; 230(10) (145)
Matter of Donohue v MacIsaac, 60 AD3d 674, 875 NYS2d 152 (2nd Dept 2009)
Holding: In a Family Court Act article 6 proceeding,the court ordered the petitioner father to pay $1,200 forcourt-ordered forensic evaluations of the parties anddirected the issuance of a money judgment in favor of theagency and against the father in that amount. The courthad the jurisdiction to direct the issuance of a moneyjudgment. See Family Court Act 651(b); DomesticRelations Law 240, 237(b), 244. However, the money judg-ment must be reversed because the court erred in direct-ing the issuance of it in the absence of an application forsuch relief by the agency and notice to the parties. SeeDomestic Relations Law 244. Money judgment reversedand the order directing the father to pay the cost of theevaluations is vacated. (Family Ct, Dutchess Co [Forman, J])
Sentencing (Concurrent/ SEN; 345(10) (33) (58) (70.5)Consecutive) (Excessiveness) (Persistent Felony Offender) (Resentencing)
People v Rivera, 60 AD3d 788, 875 NYS2d 173 (2nd Dept 2009)
The court sentenced the defendant to consecutiveterms of 25 years to life on each of the three first-degreerobbery counts, to run concurrently with the terms of 25years to life for first-degree burglary, third-degree burgla-ry, and third-degree criminal possession of a weapon.
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Holding: The third-degree burglary sentence must bevacated because the court failed to comply with the pro-cedural requirements of Penal Law 70.10(2) when it sen-tenced the defendant as a persistent felony offender onthat count. With regard to that offense, the court failed toset forth on the record why it was of the opinion that thedefendant’s history and character and the nature and cir-cumstances of the criminal conduct indicate that extendedincarceration and lifetime supervision would best servethe public interest. See People v Murdaugh, 39 AD3d 918,920. Although there was no legal bar to imposing consec-utive terms for the first-degree robbery convictionsbecause the robberies involved distinct acts against sepa-rate people (see People v Ramirez, 89 NY2d 444, 454), thesentence imposed was excessive. Judgment modified,third-degree burglary sentence vacated, remaining sen-tences shall run concurrently, judgment affirmed as mod-ified, and matter remitted for resentencing on the burgla-ry count with that sentence to run concurrently with thesentences imposed on the other counts. (Supreme Ct,Kings Co [Gerges, J])
Post-Judgment Relief (CPL § 440 PJR; 289(15)Motion)
Sentencing (General) SEN; 345(37) (70.5)(Resentencing)
People v Barnes, 60 AD3d 861, 875 NYS2d 545 (2nd Dept 2009)
Holding: The court erred in denying the defendant’sCPL 440.20 motion to vacate his sentence. After a jurytrial, the defendant was found guilty of second-degreemurder for the death of a man in the apartment buildingwhere he and his family lived. The court granted thedefendant’s motion for a trial order of dismissal and theprosecution appealed. While the appeal was pending, thedefendant was convicted of a controlled substance offensein Pennsylvania and was sentenced to a term of incarcer-ation. A month after he was paroled, this Court reversedthe trial order of dismissal, reinstated the verdict, andremitted for sentencing. The presentence report statedthat the defendant had no felony convictions prior to themurder. At sentencing, the court noted that the murderwas drug-related and that the defendant had a drug con-viction for sale of drugs where his family lived prior to themurder. However, there was no such conviction. Thecourt sentenced the defendant to 20 years to life, whichwas midway between the minimum and maximumauthorized sentences. The defendant appealed, arguingthat there was no credible evidence that the murder wasdrug-related, which this Court denied. In the defendant’slater CPL 440.20 motion, he argued that sentence was
based, in part, on the sentencing court’s erroneous beliefthat he had a drug felony conviction in addition to thePennsylvania conviction. Because this argument is dis-tinct from the one raised in the direct appeal, the courterred in concluding that the defendant was procedurallybarred under CPL 440.20(2). To establish a due processviolation, it is sufficient that the court considered a non-existent conviction when making its determination. SeeUnited States v McDavid, 41 F3d 841, 844. The sentence wasillegally imposed because the factors relied on by thecourt included materially untrue assumptions or misin-formation. See People v Naranjo, 89 NY2d 1047, 1049. Orderreversed, motion granted, sentence vacated, and matterremitted for resentencing. (Supreme Ct, Kings Co [Collini,J (motion); Beldock, J (sentence)])
Homicide (Mental Condition) HMC; 185(35) (40[a] [j])(Murder [Defenses] [Evidence])
Insanity (Psychiatrists and ISY; 200(50)Psychologists)
Self-Incrimination (General) SLF; 340(13) (25)(Waiver)
People v Diaz, __ AD3d __, 876 NYS2d 69 (2nd Dept 2009)
Immediately prior to jury selection, in the context of aMolineux application, defense counsel stated that thedefendant was not denying that he murdered or intendedto murder the decedent, but that he committed the mur-der under circumstances evincing extreme emotional dis-turbance. The prosecution argued that the defendant wasbarred from presenting evidence of that defense becausehe failed to comply with CPL 250.10(2). The court, con-cluding that the defendant’s failure to comply was notwillful, granted him leave to serve a late notice of intentand granted the prosecution’s application for a psychi-atric examination of the defendant.
Holding: The court properly concluded that thedefendant was required, under CPL 250.10, to serve andfile a notice of intent to proffer psychiatric evidence, eventhough he only intended to present lay testimony in sup-port of the defense. See People v Rivers, 281 AD2d 348. Thenotice requirement is meant to ensure that the prosecutionhas sufficient opportunity to obtain the psychiatric andother evidence necessary to refute a mental infirmitydefense. See People v Berk, 88 NY2d 257, 263, 264. Since laytestimony alone can be sufficient to establish the defense(see People v Smith, 1 NY3d 610, 612), the prosecution mustbe given an opportunity to counter the defense with rele-vant information from any source. The court did not err inordering the defendant to submit to a psychiatric exami-nation by the prosecution’s expert. The term “psychiatricevidence” in CPL 250.10 is not limited to evidence
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obtained pursuant to a psychiatric examination. There-fore, whenever the defendant intends to offer any psychi-atric evidence in connection with the affirmative defenseof extreme emotional disturbance, even if it is limited tolay testimony, the court may require an examinationunder CPL 250.10(3). The court did not violate the defen-dant’s Fifth Amendment right against self-incriminationbecause its order directing the examination limited theuse of it to the prosecution’s case on rebuttal. See egBuchanan v Kentucky, 483 US 402, 422-424 (1987).Judgment affirmed. (Supreme Ct, Kings Co [Leventhal, J])
Evidence (General) (Relevancy) EVI; 155(60) (125)
Witnesses (Credibility) WIT; 390(10)
People v Grant, 60 AD3d 865, 875 NYS2d 532 (2nd Dept 2009)
Holding: The court erred in excluding evidence,including testimony as to statements the complainantallegedly made threatening to “get” the defendant, whichwent directly to the complainant’s credibility. See People vOcampo, 28 AD3d 684, 686. The court’s discretion in mak-ing evidentiary rulings precluding or admitting evidenceon collateral issues is restricted by the rules of evidenceand the defendant’s constitutional right to present adefense. See People v Carroll, 95 NY2d 375, 385. Proof thatgoes to show a motive to fabricate is never collateral andmay not be excluded as such. Under the circumstances,the error was not harmless. See People v Crimmins, 36NY2d 230, 241. Judgment reversed and matter remittedfor a new trial. (Supreme Ct, Orange Co [Kiedaisch, J])
Family Court (General) FAM; 164(20)
Juveniles (Hearings) (Neglect) JUV; 230(60) (80) (120)(Removal)
Matter of Amanda Lynn B., 60 AD3d 939, 877 NYS2d 104 (2nd Dept 2009)
Holding: The court improperly exercised its discre-tion in removing the child from the respondent grand-mother’s custody. The grandmother had custody of thechild for 12 years before the removal. The petitioner failedto establish imminent risk to the child’s life or heath byremaining with the grandmother that outweighed theharm posed by removal. See Matter of Alexander B., 28AD3d 547, 549. There were no reasonable efforts madebefore the removal hearing to prevent or eliminate theneed for removal. See Family Court Act 1027(b)(ii).Therefore, the court erred in finding that it was in thechild’s best interest to be paroled to her natural mother.The child must be returned to the grandmother’s care
pending a determination of the educational neglect peti-tion. See Matter of Vanessa B., 38 AD3d 768, 769. The courtcorrectly admitted the mental health evaluations of thegrandmother and the child. Although they were hearsay,they were admissible in the Family Court Act 1027 pre-liminary hearing because they were material and relevantto the determination, and it was not a fact-finding hear-ing. See Family Court Act 1046(c). Order reversed, childparoled to the care of her grandmother, and matter remit-ted for further proceedings on the neglect petition to beconducted expeditiously. (Family Ct, Kings Co[Grosvenor, J])
New York State Legislation (General) NYL; 268(10)
Sex Offenses (General) (Psychiatric SEX; 350(4) (20) (25)Exam) (Sentencing)
Matter of Charles S., 60 AD3d 954, 875 NYS2d 263 (2nd Dept 2009)
Holding: The court erred in granting the state’smotion for leave to attend and videotape the court-ordered evaluation of the appellant, an alleged sex offenderrequiring civil management, to be conducted by a psychi-atric examiner of his choosing and to videotape any court-ordered evaluation that may be conducted by a psychiatricexaminer of its choosing. Mental Hygiene Law article 10 issilent on both issues. The court may not amend a statuteto insert words that are not there, nor may it read into astatute a provision that the Legislature did not choose toenact. See Matter of Chemical Specialties Mfrs Assn v Jorling,85 NY2d 382, 394. No provision of article 10 expressly per-mits the relief sought by the state and such language willnot be read into the statute. Order reversed and motiondenied. (Supreme Ct, Kings Co [Dowling, J])
Counsel (Conflict of Interest) COU; 95(10) (15) (39)(Competence/Effective Assistance/Adequacy) (Standby and Substitute Counsel)
People v McClam, 60 AD3d 968, 875 NYS2d 568 (2nd Dept 2009)
Holding: The defendant’s right to counsel was notadequately protected. Although a defendant does nothave the right to appointment of successive court-appointed lawyers at the defendant’s option, a defendantmay be entitled to new counsel if there is good cause forthe substitution, such as a conflict of interest or an irrec-oncilable conflict. The court must carefully evaluate seem-ingly serious requests for substitution to determine ifthere is good cause, considering the timing of the request,the effect on the progress of the case, and whether thedefendant’s current counsel will likely provide meaning-
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ful assistance. See People v Linares, 2 NY3d 507, 510. Theconflict between the defendant and his assigned counselstarted before the pretrial suppression hearings, and thedefendant requested new counsel. The court conducted alimited inquiry and denied the request. The defendantmade a series of requests for new counsel, and there werecontentious exchanges between the defendant and thecourt. Just prior to jury selection, the defendant renewedhis request, which the court denied. During jury selection,defense counsel admitted to threatening to punch thedefendant, and stated that the defendant was his absoluteworst client ever, he could not in good faith represent him,and he would seek the intervention of the administrativejudge if the court denied his request to be relieved. Thecourt denied the request. The next day the defendantpleaded guilty. Defense counsel told the court that theyhad reconciled, but the defendant did not confirm it. Thedefendant insisted on pleading guilty to the resistingarrest charge, even though it was not required by the pleabargain. And the court did not ask whether the defendantwas satisfied with the performance of his attorney. Thecourt failed to meet its ongoing duty to make inquiriessufficient to determine whether there was good cause forthe substitution. See People v Brown, 305 AD2d 422.Judgment reversed, plea vacated, denial of motion to sup-press statements and identification testimony vacated,and matter remitted. (Supreme Ct, Nassau Co [Calabrese, J])
Narcotics (Penalties) NAR; 265(55)
Sentencing (Concurrent/ SEN; 345(10) (70.5)Consecutive) (Resentencing)
People v Vaughan, __ AD3d __, 876 NYS2d 82 (2nd Dept 2009)
The defendant was convicted of first-degree criminalpossession of a controlled substance, second-degree crim-inal possession of a weapon, and second-degree assault.He was sentenced to consecutive indeterminate terms of15 years to life on the controlled substance count, 9 yearsto life on the weapon count, and 6 years to life on theassault count. The defendant moved for resentencingunder the 2004 Drug Law Reform Act (DLRA) (L 2004, ch738), seeking a determinate term of 15 years with a five-year period of post-release supervision on the drug countand for an order directing that the determinate term runconcurrently with the two other indeterminate terms.
Holding: The court correctly denied the defendant’smotion for resentencing. The DLRA authorizes the resen-tencing court to resentence a person convicted of a classA-I drug felony who is serving an indeterminate termwith a minimum period of 15 years to a determinate termin accordance with Penal Law 70.71. The statute does not
give the court the power to determine how the sentenceshould be served in relation to sentences for other violentfelony offenses. The only defect in the defendant’s origi-nal sentence is that the indeterminate term imposed onthe drug count does not conform to the sentencing struc-ture in the DLRA; this can be cured by replacing the inde-terminate term with a determinate term. Since there areno other defects, altering the defendant’s already-com-menced sentence to make the terms run concurrently isbeyond the court’s power. See People v Romain, 288 AD2d242, 243. Because the court did not have the authority togrant the defendant’s requested relief, the defendant’spresence was not required when the court issued its deci-sion. Cf People v McCurdy, 11 Misc 3d 757, 760 affd on othergrounds 46 AD3d 843. Order affirmed. (Supreme Ct, KingsCo [Del Giudice, J])
Evidence (Weight) EVI; 155(135)
Identification (Eyewitnesses) IDE; 190(10) (24) (35) (45)(In-court) (Photographs) (Sufficiency of Evidence)
People v Chase, 60 AD3d 1077, 876 NYS2d 485 (2nd Dept 2009)
Holding: The verdict was against the weight of thecredible evidence. The defendant was convicted of sec-ond-degree robbery and third-degree assault. The evi-dence of identity was equivocal and unconvincing. Of thesix eyewitnesses who testified for the prosecution, onlyone made an affirmative in-court identification of thedefendant, and he testified that he was not totally posi-tive. The out-of-court identifications did not prove thedefendant’s identity as the perpetrator beyond a reason-able doubt. Two witnesses were presented with a photoarray with six photos. One witness did not select any ofthe photos; the other witness selected two photos of peo-ple who “kind of” looked like the perpetrator, one ofwhich the defendant’s photo, but the witness said that theperpetrator might be the person in the other photo. Twoother witnesses were asked to identify the perpetratorusing a high school yearbook. One of them identified thedefendant and the other witness, the only one to identifythe defendant in court, did not recognize anyone. Thepolice focused their investigation on the defendantbecause the car involved was traced to his address. Thedefendant admitted being in the car, but claimed that hiscousin, who had a similar appearance, was the perpetra-tor. Another defense witness, whose physical descriptionmatched witness descriptions of a person at the scene ofthe incident, corroborated the defendant’s testimony.Judgment reversed, indictment dismissed, and matterremitted. (County Ct, Orange Co [Freehill, J])
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Identification (Eyewitnesses) IDE; 190(10) (35) (50) (57)(Photographs) (Suggestive Procedures) (WadeHearing)
People v Coleman, 60 AD3d 1079, 876 NYS2d 158 (2nd Dept 2009)
Holding: The court erred in denying, without a hear-ing, the defendant's motion to suppress the complainingwitness's identification testimony. The complainant madetwo photographic identifications of the defendant prior totrial. The defendant moved to suppress, arguing that theywere made under impermissibly suggestive circum-stances. In response, the prosecution alleged that the iden-tifications were confirmatory; in support, they provided aportion of the witness’s grand jury testimony. The witnesshad testified that about three months before the incident,he began seeing the defendant “regularly,” meaning that,every other day, he saw the defendant walk up and downthe block where the witness lived. By relying on testimo-ny that was not tested by cross-examination, the prosecu-tion failed to meet its burden of proving that the com-plainant knew the defendant so well that he was impervi-ous to police suggestion. See People v Rodriguez, 79 NY2d445, 452. The matter must be remitted for a hearing anddetermination of whether the identifications were merelyconfirmatory, and, if not, whether the identification pro-cedures were unduly suggestive. Appeal held in abeyanceand matter remitted for hearing and report on defendant’smotion to suppress identification testimony. (Supreme Ct,Kings Co [McKay, J])
Appeals and Writs (Briefs) APP; 25(15) (30)(Counsel)
Counsel (Anders Brief) COU; 95(7) (15)(Competence/Effective Assistance/Adequacy)
People v El Machiah, 60 AD3d 1081, 875 NYS2d 803(2nd Dept 2009)
Holding: The appellant’s counsel filed an Anders brief(Anders v California, 386 US 738 [1967]) and requested to berelieved as counsel. An independent review of the recordreveals potentially nonfrivolous issues, including“whether certain aspects of the testimony of LieutenantWiseman regarding his opinion that the subject fire wasincendiary invaded the jury’s exclusive province of deter-mining an ultimate fact in the case (see People v Smith, 289AD2d 597 . . . ).” Counsel relieved and directed to turnover all papers to new counsel and briefing schedule set.(County Ct, Orange Co [DeRosa, J])
Juveniles (Abuse) (Custody) JUV; 230(3) (10) (80) (145)(Neglect) (Visitation)
Matter of Gabriel James Mc., 60 AD3d 1066, 877 NYS2d 126 (2nd Dept 2009)
Holding: The court properly denied the mother’smotion to dismiss the maternal grandparents’ petition forcustody. The child was removed from the mother’s cus-tody pursuant to Family Court Act 1028. “Family CourtAct § 1017(2)(a)(i) provides that, upon removal of a childpursuant to Family Court Act § 1028, the child may beplaced with a nonrespondent parent, relative, or othersuitable person, pending further investigation, and cus-tody may be awarded to such a nonrespondent underFamily Court Act article 6. The effect of recent amend-ments to Family Court Act § 1017(2)(a)(i) (see L 2005, ch 3,§ 10; L 2008, ch 519, § 1) was to overrule prior case law,which imbued a parent charged with abuse and/or neg-lect with veto power over the placement of a child withthe noncustodial parent or other relative (see Matter of SethZ., 45 AD3d 1208; Matter of Tristam K., 36 AD3d 147, 152).We note that the record reflects that ‘conditions exist [in]which equity would see fit to intervene’ (DomesticRelations Law § 72[1]), and which are sufficient to awardthe maternal grandparents visitation in the best interestsof the child.” Notice of appeal deemed an application forleave to appeal, leave to appeal granted, and orderaffirmed. (Family Ct, Kings Co [Danoff, J])
Competency to Stand Trial (General) CST; 69.4(10)
Guilty Pleas (General [Including GYP; 181(25)Procedure and Sufficiency of Colloquy])
People v Jefferson, 60 AD3d 1085, 876 NYS2d 153 (2nd Dept 2009)
Holding: It cannot be determined from the recordwhether the defendant was competent at her plea allocu-tion and sentencing. At the plea, the court asked thedefendant whether she was under the influence of drugs,to which she replied that she had just come from the psy-chiatric ward. Instead of following up on this, the courtasked whether she understood all the questions it asked,and she responded, “Yeah.” When the court asked her if itwas clear what was happening, the defendant said thatshe was confused, and when asked what she was con-fused about, she said, “I don’t know. I’m depressed.”However, when the court asked whether her depressionprevented her from understanding the proceedings, shesaid, “No.” The court did not ask defense counsel anyquestions about the defendant’s mental state, and pro-ceeded to accept the defendant’s plea. The defendant’sresponses raised a serious question as to her competency.Therefore, the matter must be remitted for a hearing and
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March–May 2009 Public Defense Backup Center REPORT | 39March–May 2009 Public Defense Backup Center REPORT | 39
report on whether the defendant was competent at theplea allocution and sentencing. See CPL 730.30; People vHussari, 17 AD3d 483. Appeal held in abeyance and mat-ter remitted for hearing and report. (Supreme Ct,Richmond Co [Rienzi, J])
Evidence (Business Records) EVI; 155(15) (85)(Judicial Notice)
People v Ramos, 60 AD3d 1091, 876 NYS2d 127 (2nd Dept 2009)
Holding: The court properly admitted the bankrecords of the complainant. The court may take judicialnotice of business records when they “are ‘so patentlytrustworthy as to be self-authenticating’ (People v Kennedy,68 NY2d 569, 577 n 4 . . . ).” The defendant did not allegethat the records were not authentic or accurate, and thereis no reason for the records to be viewed as other than reli-able and trustworthy. See Elkaim v Elkaim, 176 AD2d 116,117. Judgment affirmed. (Supreme Ct, Queens Co [Wong, J])
Dissent: [Carni, J] The prosecution failed to lay aproper foundation for the admission of the alleged bankrecords, as required by CPLR 4518(a) and CPL 60.10 and470.05(2). The records consisted of a faxed documentreceived at the prosecution’s office while the complainingwitness was there. The prosecution did not present testi-mony from a bank employee or representative. The com-
plaining witness testified that the alleged records werenot the bank statements she received at her home and didnot look like the statements she customarily receives athome. The witness denied knowledge of the bank’srecord-keeping practices and did not know whether thedocument was made or kept by the bank in the ordinarycourse of business. �
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personal skills and ability to work bothcollaboratively and independently arenecessary. Consideration will be given toprior experience working with low-income people. Demonstrated strongwriting skills are required. Applicationswill be accepted until the positions arefilled. To apply, send a letter of interest,résumé, writing sample, and the names,addresses, and phone numbers of 3 pro-fessional references to Keith McCafferty,Managing Attorney, Legal Assistance ofWestern New York, Inc., 361 South MainStreet, Geneva, New York 14456.LAWNY is an equal opportunity employ-er. Applications from minorities, women,and people with disabilities are especial-ly encouraged. For more information,visit www.lawny.org.
The American Civil Liberties UnionFoundation of Connecticut (ACLUF-CT)seeks a Legal Director. Under the direc-tion of the Executive Director, the Legal
Director manages and coordinates theorganization’s statewide legal programand participates in non-litigation advoca-cy activities. Although the primary litiga-tion function in the ACLUF-CT’s widerange of civil liberties cases will berecruiting and managing cooperatingcounsel (generally attorneys in privatepractice who volunteer to handle litiga-tion under the direction of the ACLUF-CT), the Legal Director may also directlyhandle cases—or supervise the ACLUF-CT’s other staff attorney in handlingcases—especially in connection withpleading, discovery and emergency hear-ings and presenting oral arguments instate and federal courts at both the trialand appellate levels. Other dutiesinclude: working with the NationalACLU litigation team in investigatingand developing cases; non-litigationadvocacy responsibilities, including pub-lic speaking, media interviews and out-reach work, researching legal issuesrelated to proposed legislation, and writ-ing press releases, op-eds and newsletterarticles and reports; and working with a
local legal committee and reporting pe-riodically to the Board of Directors.Qualifications: JD with at least 5 year’sexperience as a litigator, preferably withfederal appellate experience and in com-plex litigation of constitutional issues;experience in non-profit advocacy orcommunity-based groups is valuable;membership in the Connecticut State Bar(or must pass the next bar examination);strong analytical, writing, and speakingskills; firm commitment to the missionand principles of the ACLU; demonstrat-ed ability to lead, manage, and motivateothers; superb organizational skills; com-mitment to diversity; willingness to workbeyond the 9 to 5 hours of the normalwork day; and proficiency with comput-ers. Salary DOE; competitive benefits. Toapply, submit in digital form, by email, adetailed letter of interest, résumé, writingsample and contact information for threereferences to [email protected]. TheACLUF-CT is an equal opportunity/affirmative action employer. For moreinformation, visit www.acluct.org/abou-tus/employment/. �
resources, including research reports, fact sheets, and pub-lications, on its website consensusproject.org.
John Kennedy, Ontario County AssignedCounsel Program Administrator, isMourned
NYSDA was saddened by news just as the REPORTwent to press of the death on May 26 of John Kennedy,Administrator of the Assigned Counsel Program inOntario County. John practiced law in Canandaigua forover 30 years. During the 13 years he was the AssignedCounsel Administrator, John regularly attended NYSDA’sChief Defender Convenings, and he was a long-timeNYSDA member. He also played a key role in discussionsabout Ontario County’s planned creation of a PublicDefender Office. We at NYSDA will miss him, and extendour sympathies to his family and colleagues. �
Defender News (continued from page 12)
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Checks are payable to New York State Defenders Association, Inc. Please mail coupon, dues, and contributions to:New York State Defenders Association, 194 Washington Ave., Suite 500, Albany, NY 12210-2314.
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