2nd honker
Apr. 17, 2015
News Picks from NYSDA Staff

News Picks


Stops Based on Objectively Reasonable Legal Mistakes by Police Are Constitutional. The Court of Appeals has determined that a police officer's objectively reasonable mistake of law may provide probable cause for a vehicle stop and any evidence obtained as a result of such a stop does not need to be suppressed. People v Guthrie, 2015 NY Slip Op 02867 (4/7/2015). In a 6-1 decision, the Court of Appeals followed the rationale in the recent decision in Heien v North Carolina (No. 13-604 [12/15/2014]), in which the U.S. Supreme Court held that objectively reasonable legal mistakes do not violate the federal constitution. The Guthrie majority found that there was no basis for concluding that New York State Constitution article I, ? 12 provides greater protection than the federal constitution.


Judge Rivera dissented in Guthrie, noting the important distinction between mistakes of fact and mistakes of law. Judge Rivera concluded:


We expect an officer to know the law of this state with precision because that law is the source of the officer's authority. We should not excuse an error about the basic foundation of an officer's power, or discourage better comprehension of it. Moreover, if, as the majority concludes, we cannot depend on an officer charged with enforcement powers to know the law, we place in question the integrity of our criminal justice system. That strikes me as an unacceptable outcome of the majority's approach.


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Legislative Updates for 2014 and 2015. The 2014 Legislative Review, NYSDA's annual piece on criminal justice and family court legislative changes from the last session, is now available. The article will also appear in the forthcoming issue of the Public Defense Backup Center REPORT.


The 2015-2016 state budget, signed into law on April 13, contains a handful of criminal justice and family court bills, but does not include Governor Cuomo's proposals for grand jury and related reforms in cases involving police killings of unarmed people, limiting immunity from prosecution, and raising the age of criminal responsibility. However, the budget did include funding for juvenile justice reforms; revised and/or new proposals for raising the age are expected in the coming weeks. The following legislative changes have been enacted in the budget:

  • Possession of condoms- receipt into evidence; clarification of syringe/needle exception in Penal Law 220.45 and 220.03 (L 2015, ch 57, part I- effective April 13, 2015. 
    • Repeals Public Health Law (PHL) 2781(2-a), which provided that informed consent requirements shall not apply to HIV related tests done in correctional facilities.
    • Adds CPL 60.47 (Possession of condoms; receipt into evidence): "Evidence that a person was in possession of one or more condoms may not be admitted at any trial, hearing, or other proceeding in a prosecution for [Penal Law 230.00 (prostitution) or 240.37 (loitering for the purpose of engaging in a prostitution offense)] for the purpose of establishing probable cause for an arrest or proving any person's commission or attempted commission of such offense."
    • Amends Penal Law 220.03 (criminal possession of a controlled substance 7th) and 220.45 (criminally possessing a hypodermic instrument) to make clear that the exception for possession of a syringe/needle pursuant to PHL 3381 "includes the state's syringe exchange and pharmacy and medical provider-based expanded syringe access programs." 
  • Medical parole for terminally ill inmates (L 2015, ch 55, part A)- effective April 13, 2015. The bill amends Executive Law 259-r by transferring from the Parole Board to the Commissioner of the Department of Corrections and Community Supervision (DOCCS) the responsibility to make decisions regarding the medical parole of terminally ill inmates, but making decisions granting medical parole subject to review by the Chair of the Parole Board. 
  • Revocation of teaching certificate upon conviction of a violent felony offense against a child when such child was the intended victim of such offense (L 2015, ch 56, part EE, subpart G, ? 1)- effective July 1, 2015. Education Law 305(7-a) is amended to provide that the Education Commissioner must revoke and annul the teaching certificate of a teacher convicted of a violent felony offense (as defined in Penal Law 70.02[1]) "committed against a child when such child was the intended victim of such offense." The bill also includes provisions regarding disciplinary procedures for teachers accused of misconduct that constitutes physical or sexual abuse of a student. 
  • Legislative changes required by the federal Preventing Sex Trafficking and Strengthening Families Act (L 2015, ch 56, part L)- effective April 13, 2015 (with some exceptions). Part L amends various provisions of the Social Services Law, Family Court Act, Surrogate's Court Procedure Act, Public Health Law, and Executive Law to comply with the 2014 federal law, which seeks to provide opportunities for youth in foster care. 
  • Extension of sunset date for sentencing laws- discussed below.

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Sentencing Laws Extended for Another Two Years. The Graybook (New York Criminal Statutes and Rules) includes two versions of many sentencing statutes, with editorial notations that the current law is valid "until Sept. 1, 2015," after which the alternative will become effective. However, the alternative statutes would become effective only in the extremely unlikely event that the legislature chooses to let the current determinate sentencing scheme lapse. Since 2005, the legislature has extended these laws every time they were scheduled to "sunset." As part of this year's state budget, the sunset date for these laws has been extended for two years to September 1, 2017 (L 2015, ch 55, part B), so those laws will not change on September 1, 2015. 


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Suffolk County Localities Settle Suit Regarding Confidential Attorney-Client Conference Facilities. A lawsuit brought by the Suffolk County Legal Aid Society (SCLAS) against municipalities in the County's East End over inadequate confidential conference space for client-attorney interviews has been settled. The agreement calls for completion of construction to create appropriate spaces by April 30, 2015. SCLAS's Verified Petition (petition exhibits are available upon request) set out allegations of systemic and continuous violation of the right to counsel where persons eligible for mandated legal representation were denied private consultation with the attorneys representing them at arraignment. It cited federal and other authority regarding the constitutional right to counsel generally and specifically at arraignment. In describing the deprivation of that right in the justice courts of the respondent localities, the petition revealed that law enforcement personnel had inserted the content of overheard attorney-client conversations into "Oral Admission Reports."


The alleged recording of telephone calls from clients in jail to their attorneys, raising similar concerns, was unsuccessfully challenged in an article 78 proceeding filed in Nassau County, the New York Law Journal [subscription required] reported on April 2. Mineola-based criminal defense firm Raiser & Kenniff plans to appeal.


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Adjudication of Parole Violation Charges Against Mentally Incompetent Persons Violates Due Process. In Matter of Lopez v Evans (2015 NY Slip Op 02868 [4/7/2015]), the Court of Appeals held it is a violation of due process to conduct a parole violation hearing when the parolee is mentally incompetent to participate in the hearing or assist counsel in doing so. "It is only the parolee himself who is in a position to know the facts and assist in his or her defense. When the parolee, by reason of mental incapacity, is unable to understand, recall, or express such vital information, it is inconsistent with due process for a parole board to proceed with a revocation hearing." The petitioner, Lopez, had been adjudicated incompetent to stand trial in connection with a misdemeanor assault charge that formed the basis for the parole violation. Because he had already been declared incompetent in criminal court, the Court of Appeals did not have occasion to decide how incompetency should be determined in the parole violation context when no criminal charges are pending against the parolee. The court invited the legislature to address this unresolved issue. Elon Harpaz of The Legal Aid Society represented Lopez.


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Erie County Sheriff's Office Stingray Records Now Available. Last week the New York Civil Liberties Union (NYCLU) announced its release of records received from "the Erie County Sheriff's Office on its use of 'stingrays,' devices that can track and record New Yorkers' locations via their cell phones." The records revealed, among other things, that:

  • The Sheriff's Office used stingrays at least 47 times between May 1, 2010 and October 3, 2014, which includes assistance provided to other law enforcement agencies like the Monroe County Sheriff's Office.
  • "The office apparently obtained a court order prior to using the device only once in those 47 circumstances, contradicting the sheriff's statements to a local reporter and the legislature that this device is being used subject to 'judicial review.' In the one case a court order was obtained, in October 2014, the sheriff did not obtain a warrant but a lower level court order called a 'pen register' order." 

For more information and to review the records received by the NYCLU, click here. The NYCLU has posted redacted complaint summary reports; attorneys in Erie and Monroe counties who have a case that might have involved the use of a cell site simulator should contact the Backup Center to get access to the unredacted documents.


Earlier this month, The Baltimore Sun reported that "[i]n Baltimore, they've been using this [cell site simulator] since 2007, and it's only been in the last several months that defense attorneys have learned enough to start asking questions. . . ." The article includes information about a federal criminal case in the District of Maryland in which the defense filed a motion to suppress evidence resulting from the use of a stingray. The secrecy surrounding these devices and local authorities' inability to provide information because of nondisclosure agreements that direct them to contact the FBI if they are asked questions about the device makes it difficult to fully understand the risk posed to the public by their use. Defense attorneys should continue to litigate against the use of stingrays in appropriate cases. According to Nate Wessler, an attorney with the ACLU, "defense attorneys are being able to get really good deals for their clients, because the FBI is so insistent on hiding all of these details." 


NYSDA's upcoming Criminal Defense Tactics and Techniques XVI program in Rochester on Saturday, April 25, 2015 will address some the issues posed by the use of these devices. Mariko Hirose, a staff attorney at the New York Civil Liberties Union who focuses on statewide civil rights and civil liberties impact litigation, will present on "Fourth Amendment Issues and New Technology." See the brochure for registration information.


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NCJA Webinars Include "Internet Facilitated Sexual Offending". A list of upcoming webinars from the National Criminal Justice Association (NCJA) includes an April 20, 2015 presentation on Internet-facilitated sexual offending. According to the announcement, a decrease in reported child sexual abuse cases, and violent crime in general, has occurred at the same time as an increase in sexual crimes with an Internet component, indicating that the latter may be "a new phenomenon that may not be influenced by the same contextual factors as other kinds of sexual or violent crime." Intended for policy makers and practitioners, and based on reviews of scientific literature, the webinar may reveal trends in attitudes or policies affecting the prosecution and treatment of clients facing such charges.  


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Defense and Court Podcasts on the Rise. The New York State Unified Court System has begun a podcast program called the "Amici." "The 'Amici' podcast series was created to share information and insight from New York's judges and the Unified Court System with constituents, stakeholders and anyone else who might have an interest in these topics." The first podcast is an interview with William Leahy, Director of the Office of Indigent Legal Services, which reviews the state of public defense throughout New York. The most recent podcast is of Chief Judge Lippman's opening remarks to the Pro Bono Scholars Program (PBSP) students who will spend their last semester of law school providing services for the poor. To date there are three podcasts on the site ranging from less than 7 minutes to 21 minutes. Transcripts are available for those who prefer it. The "Amici" is taking suggestions for topics of interest; to make a suggestion, contact John Caher at 518-453-8669 or jcaher@nycourts.gov.


The National Association for Public Defense (NAPD) also has a series of podcasts of varying lengths on topics ranging from client-centered representation and attorneys' reflections about their work, to ways to address hurdles and challenges in the criminal justice system. The National Association of Criminal Defense Attorneys has its own podcast series called "The Criminal Docket," which reports on upcoming cases before state and federal courts and other criminal justice news.


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