2nd honker
Apr. 19, 2016
News Picks from NYSDA Staff
News Picks
New York Now Has Eligibility Standards. On April 4, the New York State Indigent Legal Services Office (ILS) issued criteria and procedures for determining the eligibility of people seeking mandated representation. The first standard concisely states that applicants for public defense representation are eligible if they lack resources to pay for a qualified lawyer, release on bond, the expense of a competent defense, and reasonable living expenses for themselves and their dependents.

The need to apply the eligibility criteria and procedures with transparency requires wide dissemination of the standards, including on websites (see section IX and its commentary). That is already being met to a degree; the criteria and procedures are posted on the Public Defense Standards page of NYSDA's website and, along with documents relating to creation and implementation of the new standards, on the ILS website . ILS also emailed the new standards to Chief Defenders of criminal and family defense programs and many county and city officials. That email set out the official effective date of the standards: October 3, 2016.

The New York Association of Counties (NYSAC) included an item on the new standards in its Weekly Wire for the week ending April 8. Noting the possibility that the new standards could increase the number of people for whom counsel must be provided, NYSAC adds this to the list of reasons that "counties need fiscal relief from the state to continue providing this important program [public defense]." Legislation calling for the State to reimburse counties for public defense expenditures is pending, as recently described  in the North Country News.

New Center for Appellate Litigation Publication on Issues to Develop at Trial. T he Center for Appellate Litigation has inaugurated a monthly newsletter to disseminate ideas about emerging and on-going issues ripe for appellate practice that must be developed at the trial stage. The information is intended to guide trial counsel in the identification of issues and preservation requirements to enhance appellate practice in the event a case goes up on appeal. Volume 1 Issue 1, addressing flaws in certain Criminal Jury Instructions (CJI), is available here.

Prosecutors Cannot Defeat Judicial Diversion by Charging Non-Specified "Neutral" Crimes. Criminal Procedure Law article 216 authorizes judicial diversion when a defendant is charged with a Class B, C, D, or E drug or marijuana offense or a non-violent "Willard-eligible" crime specified in CPL 410.91. It also specifies current charges that exclude a defendant from diversion without prosecutorial consent, i.e., a violent felony or a merit time ineligible offense (e.g., sex offenses, homicide offenses - see Corr L 803) that carry mandatory state prison time. In People v Smith (2016 NY Slip Op 02596 [1st Dept 4/5/2016]), the First Department held that prosecutors cannot defeat eligibility for judicial diversion by charging a "neutral" offense, one that does not fall into either category.

Smith was charged in a nine-count indictment with forgery, grand larceny, criminal possession of stolen property, identify theft, and criminal trespass. None of the charged crimes was an exclusion offense listed in CPL article 216. Six were qualifying offenses and three charges (identity theft in the first- and third-degrees and criminal trespass) were "neutral" offenses. The trial court denied Smith's application for judicial diversion, ruling that the neutral charges rendered him ineligible without consent of the prosecutor. He pleaded guilty to forgery and was sentenced to state prison. The First Department reversed, holding that the plain language of the statute rendered Smith eligible for judicial diversion without prosecutorial consent. "While there is no question that prosecutors have 'broad discretion to decide what crimes to charge' ... '[t]o read the statute to exclude individuals on the basis that they are also charged with nonqualifying offenses would allow the People to undermine the purpose of the statute by including a nonqualifying offense in the indictment, and thereby rendering the defendant ineligible' ...."

Court Reluctantly Upholds Prosecution's Use of Recorded Pretrial Jail Calls. A man who spoke by telephone with family and friends while incarcerated pretrial at Rikers Island lost his challenge in the Court of Appeals to the use against him at trial of those calls, recorded pursuant to a monitoring policy and practice that included releasing the recordings, upon request, to city prosecutors. The Court concluded that it was "constrained by the law applicable to the arguments, as narrowed by [the] defendant, to conclude" that the defendant was not entitled to a new trial based on use of the calls.  People v Johnson , 2016 NY Slip Op 02552 (4/5/2016). The Court rejected the defendant's argument that the Department of Corrections violated his Sixth Amendment right to counsel as the Department was not acting as an agent of the State when it recorded the calls it gave to the prosecution; the Department did not coerce, solicit, encourage, or otherwise induce the defendant to call his family and friends and make statements detrimental to his defense. The Court also rejected, as unpreserved, his claim that he did not consent to the recording of his calls where he was not advised that the recordings could be turned over to the prosecution.

However, Judge Rivera's opinion for the Court did acknowledge that the "conditions attendant to pretrial detention" might well "result in the unwise and imprudent use of unprivileged telephone calls to communicate matters related to a detainee's prosecution" and that its "resolution of the narrowly drawn issues presented on this appeal should not be interpreted as this Court's approval of these practices." Judge Pigott, in concurrence, made clear that the result, while necessary, should not be the end of discussion about the practice. The "current arrangement" between Rikers and prosecutors "creates a serious potential for abuse and may undermine the constitutional rights of defendants financially unable to make bail," he noted, adding: "Something needs to change."

The case did not involve recording of any conversations with defense counsel. Questions about that separate jail-communications issue have come to the attention of the Backup Center in the past. For example, see "Confidential Conferences with Clients Vital from the Beginning and Throughout Representation," in the January-April 2015 issue of the Backup Center REPORT (beginning on p. 3).

OCFS Responds to Decision Finding Questioning of Child at School Without Parental Permission = Unconstitutional Seizure. As related in the Oct. 6, 2015 issue of News Picks, Southern District Court Judge Sidney H. Stein, in an from the bench in Phillips v County of Orange (No. 10-Civ-236 [SHS]), granted summary judgment in a 42 USC 1983 action to the parents of a then five-year old girl who was interrogated by a "multidisciplinary team" (MDT) at her school without her parents' knowledge. The interrogation was based on allegations of sexual abuse in the child's home. Judge Stein concluded that the seizure of the child was unconstitutional. Reportedly, the parties engaged in settlement negotiations and Orange County was set to review its protocol based on the court's decision.

In response to the decision, the NYS Office of Children and Family Services (OCFS), Division of Child Welfare and Community Services issued a memorandum (16-OCFS-LCM-05) for distribution to all county department of social services commissioners. In the memo, OCFS takes the position that the Phillips decision should not have any bearing on the policies or protocols in any county outside of Orange County. The memo argues that because the decision was issued orally and not reduced to a written decision, it has little to no precedential value. It also questions the court's analysis of lower court decisions in the Second Circuit and notes that the Seventh Circuit decision is not binding in New York.

In the memo, OCFS reminds counties of their legal obligation to investigate allegations of abuse and maltreatment, pursuant to Social Services Law 424(6)(a) and 18 NYCRR 432.2(b)(3), and of the existing guidance regarding interviewing children at school set forth in Chapter 4 of the OCFS Child Protective Services Program Manual . While OCFS is not requiring counties to change their interview practices, the memo provides guidance to counties that choose to respond to Phillips : "a CPS worker or MDT member could interview a child in a public school without the consent of a parent if the CPS worker or MDT member has either (1) probable cause or (2) good reason to believe that child abuse or maltreatment occurred." In deciding whether either standard has been met, OCFS advises consideration of several factors, such as whether the parent is the subject of the report; the reliability of the report's source and/or the information in the report; whether the source is a mandated reporter; and whether interviewing the child at school without parental permission is necessary to protect the child's safety. Regarding mandated vs. non-mandated reporters, the memo notes that "[t]he indication rates for reports from mandated reporters are historically higher than the indication rates for reports from non-mandated reporters. Accordingly, a report from a mandated reporter could be considered more reliable than a report from a non-mandated reporter."  Finally, the memo reminds local agencies that the law does not require that Child Protective Services inform parents of their right to refuse a home visit as part of an MDT investigation, but suggests that "if a parent asks CPS whether they are required to permit a home visit, CPS should advise the parents that they are not required to permit the home visit." Despite this guidance, it should be noted that no state law requires local school districts, social services departments, and police to interview children at school without notice to parents when any  allegation of child mistreatment is made. 

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