Raise the Age Takes Effect in a Month: Who’s Ready?
For 16-year-olds, Raise the Age (RTA) is effective on Oct. 1, 2018. While the statutory changes will go into effect automatically, RTA implementation plans are still in development around the state. We encourage defenders to share with NYSDA information about your county’s RTA plan or lack thereof: contact Susan Bryant, Acting Director, at 518-465-3524 or sbryant@nysda.org. NYSDA has also been gathering RTA practice resources for defenders, which can be obtained by calling the Backup Center legal staff at 518-465-3524.

The Office of Probation and Correctional Alternatives recently released proposed changes to regulations related to RTA. The deadline for comments on the proposals is Oct. 8, 2018 . The proposal includes a new 9 NYCRR Part 359 , which would govern probation in youth parts, and a number of amendments to Part 356 , which governs probation services in juvenile delinquency cases. Other changes are in Parts 347, Appendix H-10 (Standard Specifications for Professional Probation Positions), 348 (Case Record Management), 350 (Investigations and Reports), 351 (Supervision of Persons Sentenced to or Placed on Probation), and 352 (Graduated Sanctions and Violations of Probation [proposed new title: Graduated Responses]). The notices of proposed rulemaking were published in the Aug. 8, 2018 issue of the State Register.

Part 359 includes rules regarding the voluntary assessment and case planning services authorized in the new CPL 722.00. Under the proposed rule, probation departments must establish written policies and procedures for uniform provision of the assessment and services; probation must be present at the initial appearance of the regularly scheduled Youth Part; probation must offer the assessment and services to adolescent offenders and juvenile offenders at the earliest possible opportunity; and where available, probation must advise the judge of alternatives to detention. While the rules note that “[i]f the youth fails to appear at probation for the initial interview, the probation department shall advise the Court within 3 business days, if the appointment is not rescheduled,” it is not clear whether this would apply if the youth declined to participate in an initial interview. Proposed section 359.8 addresses removal to family court and provides that during the intake and adjustment services process (governed by Part 356), “the probation department may consider the youth’s voluntary participation in assessment and case planning services while having been in the Youth Part. Participation and progress in such services while in Youth Part may reduce the time needed for adjustment services, depending upon the youth’s progress in addressing criminogenic needs.”

Governor Signs Prosecutorial Conduct Commission Bill, With Changes
The Governor signed the bill creating a Commission on Prosecutorial Conduct, one of the first in the nation. As reported in the New York Law Journal ( NYLJ ) on Aug. 20, 2018 , Governor Cuomo and state legislators agreed to some changes in the bill passed in June; these chapter amendments are expected to be approved when the Legislature returns in January. NYSDA supported creation of the Commission, modeled on the Commission on Judicial Conduct. The grassroots organization credited with developing the idea for the Commission, It Could Happen to You, led by Bill Bastuk, issued a news release reflecting the diverse group of supporters that worked to bring it about, including wrongfully convicted people or exonerees; NYSDA; the New York State Association of Criminal Defense Lawyers ; the Chief Defenders Association of New York; Katal Center for Health, Equity, and Justice; VOCAL-NY; and The Innocence Project. Media reports such as that in the Times Union noted that the Attorney General's office prepared a report claiming the bill as passed contained "'several constitutional defects,'" which were part of the focus of the chapter amendments. The District Attorneys Association of the State of New York (DAASNY) opposed the law; DAASNY President David Soares has urged prosecutors to decline appointments to the Commission, as noted in the NYLJ on Aug. 14, 2018 .

Comment Sought on Change to Engagement of Counsel Rules
Unified Court System administrators have suggested a proposed amendment to the Uniform Rules for the Engagement of Counsel (22 NYCRR Part 125). Under a new proposed section, "attorneys in criminal cases where the defendant is incarcerated would be required to file an affidavit or affirmation of engagement with the affected court ­at least one day prior to the court date," which the request for comment described as "modest advance notice" that would allow notification of the facilities holding the defendant. Request for Public Comment on Proposed Amendment to the Uniform Rules for the Engagement of Counsel (22 NYCRR Part 125) . Comments must be received no later than Oct. 1, 2018 . Email submissions to rulecomments@nycourts.gov or write to John W. McConnell, Esq., Counsel, Office of Court Administration, 25 Beaver Street, 11th Fl., New York, New York 10004. NYSDA would appreciate receiving copies of any submitted comments: mcrawfor@nysda.org.

Paperno on Searight Hearsay Ruling
Advice about seeking suppression based on hearsay allegations relied upon by arresting officers appears in an Aug. 2, 2018, post on the New York Criminal Defense blog. The comments focus on the Fourth Department ruling in People v Searight (162 AD3d 1633 [6/15/2018]), involving the arrest of a driver based on a warrant discovered following a traffic stop. The Appellate Division suppressed the evidence because the officers acted on multiple hearsay information about the arrest warrant. Jill Paperno, the author of the post, notes that the court suppressed evidence stemming from the arrest even though the driver did violate the Vehicle and Traffic Law—the initial stop was based on failure to signal far enough in advance of a turn—and did not have a license. "So to the extent you can, if you have a V & T stop, and the police claim a warrant existed that you can challenge, try to get the officers to acknowledge that the arrest was based on the warrant," Paperno writes. (In an aside, she also suggests ways to challenge stops based on failure to signal in advance.) Searight was more briefly discussed in the April-July issue of NYSDA's Backup Center REPORT at p. 2, and in the Office of Indigent Legal Services Decisions of Interest column for June 18.

New Appellate Division Practice Rules Take Effect September 17
The new Joint Rules of the Departments of the Appellate Division, 22 NYCRR Part 1250 , will take effect on Sept. 17, 2018. A slightly amended version of the rules was issued on June 29, 2018. As noted in the Mar. 19, 2018 issue of News Picks , the new joint rules do not make appellate practice completely uniform. Attorneys must still check the local rules, which were adopted at the same time as the joint rules: 22 NYCRR Part 600 (First Department); Part 670 (Second Department); Part 850 (Third Department); and Part 1000 (Fourth Department). According to a notice on the First Department website , “[t]he new practice rules will apply to (1) all matters commenced in the Appellate Division, or in which a notice of appeal to the Appellate Division is filed, on or after the effective date, and (2) all matters pending in the Appellate Division on the effective date, unless otherwise ordered by the Court upon a showing that application of the rules would result in substantial prejudice to a party or would be manifestly unjust or impracticable under the circumstances.”

New Law Allows Local Justices to Preside at Off-Hours Arraignments Anywhere in the County
Legislation allowing town and village court justices to preside in off-hours arraignment parts in other municipalities in the county was signed into law on Aug. 24, 2018. The law, L 2018, ch 231 , was introduced to correct an oversight in L 2016, ch 492, which authorized such parts. Without the new law, off-hours arraignment parts would not be sited in City Courts, even if they had the most appropriate facilities in the county, because non-lawyer judges could not be temporarily assigned there. Now, instead of being temporarily assigned to another court for off-hours arraignment purposes, lay judges can hold their own court in whatever municipality the part is established. The proposal came out of the Chief Administrative Judge’s Advisory Committee on Criminal Law and Procedure, of which NYSDA Litigation Counsel Al O'Connor has been a member since 2002 .

Temporary Expanded Public Loan Forgiveness Opportunity
From the August 2018 Equal Justice Works ’ Debt Relief e-newsletter: “Good news on Temporary Expanded Public Service Loan Forgiveness [TEPSLF]. We mentioned a couple of months ago that the recent omnibus bill created a $350 million loan cancellation fund for borrowers who have met all the qualifications to earn Public Service Loan Forgiveness but were not enrolled in a qualifying repayment plan. That funding is now available and is being disbursed on a first-come, first-served basis! To learn more, visit Federal Student Aid .” As noted on the Federal Student Aid website: “Once all the funds are used the TEPSLF opportunity will end.” More information about student debt relief is available from Equal Justice Works at http://www.equaljusticeworks.org/student-debt .

Employment Opportunities Posted on NYSDA’s Website
NYSDA posts current job postings for public defense and related positions at https://www.nysda.org/page/Jobs . If you know of someone who may be looking for a new opportunity, please share this link with them. And if you have a public defense job to advertise, you can send it to sbryant@nysda.org for posting on NYSDA's website. (Note: we do not charge for job postings).