News Picks

Recent Challenges to Techniques for Analyzing DNA Evidence. Over the past several months courts in New York, including in Schenectady and Kings Counties, have wrestled with questions about techniques used to analyze complex DNA evidence. Challenging the reliability of the testing and analysis of DNA evidence and its admissibility is a path defense attorneys should continue to go down.

In a homicide case in Schenectady, TrueAllele--described as a statistical computer system used to interpret complex DNA evidence, such as samples taken from items that were touched by many people--is undergoing its first test in a New York court after a defense challenge to the reliability of the evidence. According to a Times Union article, during a pre-trial hearing in People v Wakefield, Dr. Barry Duceman, Director of Biological Science for the New York State Police Forensic Investigation Center, testified that there was "an ongoing investigation into alleged cheating amongst my staff members relative to True Allele implementation." Later, it was revealed that 12 DNA forensic scientists have been temporarily removed from criminal case work after an internal investigation. These revelations led to questions about TrueAllele's validation study, which was conducted by, among others, the developer of the technology (Mark Perlin) and Dr. Duceman, using samples from the State Police's Forensic Investigation Center. In Wakefield, the analysis was performed by Perlin, not the State Police. While the NYS Forensic Science Commission approved the use of TrueAllele for forensic science casework back in 2011, the State Police have not started using it yet; that is expected to change soon.

Earlier this month, Kings County Supreme Court Justice Mark Dwyer reaffirmed his previous November oral ruling that the NYC Office of the Medical Examiner's (OCME) Low Copy Number (LCN) testing and Forensic Statistical Tool (FST) do not meet the Frye standard of general acceptance in the relevant scientific community and do not have a place in the courtroom. According to a Daily News article, The Legal Aid Society DNA Unit "argued that both forms of evidence are unreliable and the margins of error are too high." After an extensive joint Frye hearing involving two separate violent felony cases, Justice Dwyer agreed.

According to The Legal Aid Society's press release, "Justice Dwyer's decision relies on the extensive, unparalleled factual record established over the course of the hearing which commenced in 2012 and has far-reaching implications for the admissibility of the OCME's controversial testing methodologies in criminal cases throughout the city." A written decision on this issue is forthcoming.  

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Pre-printed DWI Supporting Deposition Insufficient on Non-DWI Charges. A city court judge found that a pre-printed DWI supporting deposition was insufficient to support the non-DWI Vehicle & Traffic Law violations that were charged in the simplified information and dismissed those charges. In People v Fox (2014 NY Slip Op 24416 [Canandaigua City Ct, 12/22/2014]), the defense challenged the sufficiency of the checklist form supporting deposition, which was served in response to a timely request under CPL 100.25(2) for a supporting deposition on each of the charges, as related to the non-DWI charges of VTL 1163(b) [improper turn signal] and 1227(1) [open container during operation]. The court agreed, finding that the bare references to the VTL sections that included nothing more than the statute numbers and the itemization of an open container as evidence seized at the time of the arrest were deficient as a matter of law as they did not provide reasonable cause to believe that the defendant committed those violations. In support of the dismissal of the non-DWI charges, the court cited People v Mangano (17 Misc 3d 1110[A] [Ossining Town Ct 2007]), a case in which a DWI checklist supporting deposition was found to be sufficient to sustain the DWI charges, but insufficient to sustain the accompanying traffic infractions. Mangano further held that the prosecution could not use a superseding long form information to cure the defective simplified traffic information.

The checklist-style supporting depositions used in Fox and Mangano, which seem to be specifically intended for DWI cases, may be outdated forms. Form 3204, found on the DCJS website, is a May 2014 iteration of a recommended checklist-style supporting deposition for DWIs and other Vehicle & Traffic Law charges. Defenders are urged to review this form and other similar forms carefully, because they, too, may fail to provide the necessary allegations of fact.

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Commission on Youth, Public Safety and Justice Releases Juvenile Justice Reform Report. The Governor's Commission on Youth, Public Safety and Justice, formed last year in response to proposals to raise the age of criminal responsibility from 16 to 18 or older, has released its report and recommendations for juvenile justice reform. The report includes extensive information and statistics regarding the state's current system and its impact on 16 and 17 year olds, particularly in minority communities, the juvenile justice systems in a variety of other states, and best practices in adolescent justice based on brain science. The Commission presented a list of 38 recommendations, including:

• Raising the age of juvenile jurisdiction to 18, with some exceptions regarding juvenile offender crimes, violent felony offenses, and other higher level felony offenses;
• Creating new Youth Parts in superior courts that would handle all cases involving 16 and 17 year olds that remain in criminal court, as well as all juvenile offender cases;
• Requiring police to provide parental notification of the arrest of 16 and 17 year olds and moving questioning to Office of Court Administration-approved rooms;
• Prohibiting confinement of youth under the age of 18 in adult jails or prisons;
• Expanding the diversion and reentry services for 16 and 17 year olds; and
• Allowing sealing of certain convictions for crimes committed while under age 21.

Missing from the report was a discussion about the impact these recommendations may have on the existing systems for providing representation to juveniles in family court and criminal court, including the impact on caseloads and funding. Attorneys for the child, who do not generally have experience representing this age group, at least in the context of criminal proceedings, would presumably take over the representation of these young people in juvenile delinquency cases. And public defense providers would likely continue to represent juveniles whose cases began in criminal court, but were removed to family court, in cases where the youth court judge chooses to retain jurisdiction. In such cases, defenders would need training on Family Court Act article 3 and the range of services available under that article.

Many of the Commission's recommendations appear in Governor Cuomo's executive budget. S2006/A3006, Part J (Education, Labor and Family Assistance Article VII bill); Memorandum in Support. We are analyzing the proposed legislation and will continue to monitor its status throughout the budget process.

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Memo Available on Factors for Client Eligibility and 2015 Poverty Guidelines. NYSDA's annual memo on federal poverty guidelines and making informed client eligibility determinations was recently emailed to all Chief Defenders. The memo includes a chart applying percentages of the Legal Services Corporation (LSC) income guidelines by family size. The memo stresses that while many courts use such percentages, "[t]he constitutional and statutory standard for determining eligibility is 'financially unable to afford counsel,' not indigency." [Footnote omitted.] If income guidelines alone would render a potential client ineligible, a number of other factors must be considered. 

Representation should not be delayed when eligibility questions arise. The Indigent Legal Services Office standards require counties to ensure that public defense programs "[p]rovide representation for every eligible person at the earliest possible time and begin advocating for every client without delay, including while client eligibility is being determined or verified." (Standard 5). This is consistent with Standard C-5 of the New York State Bar Association's standards, and with NYSDA's Standard VII.B., which notes that "[a]ny doubt concerning a potential client's eligibility should be resolved in favor of eligibility of the client." The NYSDA memo also notes that the Indigent Legal Services Office, under its statutory authority and pursuant to the settlement agreement in the NYCLU lawsuit, Hurrell-Harring v State of New York, will be establishing eligibility criteria and procedures.

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Association News

Metropolitan New York Trainer at NYU on March 14. Registration is now open for NYSDA's 29^th Annual Metropolitan New York training program, to be held at NYU Law School on Saturday, March 14, 2015. Topics at this event, including eyewitness identification, Sexual Assault Nurse Examiner (SANE) examinations, and representing military veterans, are listed in the brochure. This event fills early - register today!

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