2nd honker
Apr. 20, 2017
News Picks from NYSDA Staff
News Picks
NYS Budget Includes Public Defense Reform. NYSDA and the other over 200 organizations supporting the Justice Equality campaign applauded inclusion in the FY 2017-2018 budget of a plan to incrementally implement state funding of public defense improvement in localities. See the April 10 news release . When completed, the plan will provide to all counties the same assistance provided to the five counties named in the Hurrell-Harring lawsuit settled two years ago. The Indigent Legal Services Office (ILS) will develop the plan, actually, a set of plans to address the specific issues of counsel at arraignment, caseload relief, and initiatives to improve the quality of public defense. ILS will also monitor and report on the implementation of and compliance with the plans. The independence of ILS continues in the statute; approval of the plans by the Director of the Division of the Budget is required, but only as to "the projected fiscal impact of the required appropriation for the implementation of such plan." That's already DOB's function, and the new law says such approval "shall not be unreasonably withheld." The statute also commands: "The state shall appropriate funds sufficient to provide for the reimbursement required by this section." The bill is online (see Part VVV, sections 11-12 [pp. 207-209]). 

LAS Summary of New ID and Interrogation Laws. Legislation passed as part of the state budget makes certain kinds of photographic identification evidence admissible for the first time in New York and requires police to video record custodial interrogations in some types of cases, although without a suppression remedy for improperly failing to do so. John Schoeffel, Staff Attorney with The Legal Aid Society's Special Litigation and Training Units, has prepared a Practice Advisory summarizing these changes. NYSDA appreciates his sharing that information with public defense lawyers throughout the state; it is available here.

IDP Issues Defender Practice Tip on ICE at Courts and Sheriffs' Association Issues Memo on ICE Detainers. The Immigrations and Customs Enforcement (ICE) is increasing its presence in New York criminal and family courts and there has been a significant rise in the number of arrests by ICE officers in and just outside of courthouses. In response, the Immigrant Defense Project (IDP) released a two-page guide of " Practical Tips for Defenders on ICE at Courts ." The guide provides many practical suggestions for defense attorneys whose non-citizen clients may be at risk of arrest when appearing in court. It includes information on how to identify ICE agents, what to do if you see your client being arrested by ICE agents, and what you should say on the record before or after your client has been detained. IDP encourages attorneys to share this resource with your colleagues. IDP also offers a number of additional resources for criminal defenders.

The New York State Sheriffs' Association (NYSSA) issued a memorandum on "Compliance with federal detainer warrants" concluding that, "[b]ecause of liability concerns, we cannot recommend that Sheriffs hold inmates for 48 hours (or longer) pursuant to such a federal detainer and order. Sheriffs should honor these federal detainers to hold inmates beyond their release date only after reviewing with their county attorney the potential for County and Sheriff liability, as was done recently in Suffolk County." To reach its conclusion  NYSSA reviewed federal and state cases, the opinion of the Suffolk County Attorney's Office to Suffolk County Sheriff Vincent DeMarco, the New York State Attorney General's Guidance Concerning Local Authority Participation in Immigration Enforcement and Model Sanctuary Provisions, as well as President Trump's Executive Order: Enhancing Public Safety in the Interior of the United States. The memo points out that while New York federal courts have not yet weighed in on the issue, a number of other federal courts have ruled that federal detainers are not sufficient authority for continued detention of an inmate due to the lack of probable cause that a crime has been committed. The full memorandum, dated Feb.14, 2017, is available here

Defenders are encouraged to contact the Regional Immigration Assistance Centers, funded by the Office of Indigent Legal Services, which provide training and assistance for public defenders representing non-citizen clients in criminal and family court proceedings. Contact information for each of the six centers is available on NYSDA's Criminal Immigration Resources page

Successful Challenge to Probation Condition Prohibiting Suboxone. In what may be the first case of its kind, a Clinton County man successfully challenged a judge's probation condition requiring him to stop taking the addiction medication, Suboxone. The Legal Action Center (LAC), a New York City-based non-profit law and policy organization, orchestrated the successful challenge and would like to share its papers and strategies with attorneys whose clients are forced off opioid addiction medications, such as methadone, buprenorphine/naloxone (Suboxone), or injectable naltrexone (Vivitrol). Criminal justice and child welfare agencies often prohibit these medications in contravention of medical standards. The consequences include increased chance of relapse, overdose, death, and recidivism.
LAC and local pro bono counsel, Robert Ballan, argued that the probation condition imposed by Judge Lawliss in the Clinton County Integrated Domestic Violence Part violated Penal Law 160.50, the Americans with Disabilities Act, and Constitutional due process. Judge Lawliss had ordered the individual off his doctor-prescribed Suboxone without consulting his treating physician or conducting an individualized assessment. After assigned counsel did not object, pro bono counsel filed an order to show cause, pursuant to Criminal Procedure Law 410.20, to remove the probation condition. In support of the motion, counsel submitted affidavits from the treating physician and an addiction medicine expert. Judge Lawliss granted the motion. The redacted order to show cause is available here and the redacted affidavit of an addiction medicine expert is available here. Attorneys who are dealing with issues regarding medication-assisted treatment (sometimes referred to as MAT) are encouraged to contact the Legal Action Center (Sally Friedman or Melissa Trent) for assistance at 212-243-1313.

DOCCS Must Affirmatively Help Inmates Find Suitable Housing for Reentry.  In  Gonzalez v Annucci  (2017 NY Slip Op 02099 [3/23/2017]), the Third Department held the Department of Corrections and Community Supervision (DOCCS) must affirmatively help inmates find suitable housing upon release. The petitioner was prohibited from residing within 1000 feet of a school under the Sexual Assault Reform Act (SARA). Upon completion of his 2 ½ year determinate sentence, Gonzalez had not yet secured SARA-compliant housing. DOCCS thereupon transferred him to Woodbourne Correctional Facility, a designated residential treatment facility (RTF), pursuant to Penal Law 70.45(3), which authorizes transfer to an RTF for up to six months following a person's initial release to post-release supervision. At Woodbourne, Gonzalez submitted 58 addresses for approval by DOCCS. DOCCS rejected all of them. Gonzalez sought relief from confinement in an Article 78 proceeding. Four months into his RTF confinement and during the pendency of the Article 78 proceeding, Gonzalez was released when a SARA-compliant homeless shelter bed became available. The Supreme Court dismissed his Article 78 petition as moot.

Finding Gonzalez's experience "all too common," the Third Department held his appeal was properly reviewable as an exception to the mootness doctrine. "The ultimate placement [Gonzalez] obtained," the court wrote, "was one of only four authorized homeless shelters in New York City that accept individuals subject to SARA restrictions. We agree with petitioner that, due to the 'recognized difficulty in securing acceptable housing' for persons subject to sex offender residency restrictions, there is a likelihood of repetition regarding individuals being placed in RTFs due to the failure to secure suitable housing ...." On the merits, the three-judge majority held that by merely passively reviewing residences proposed by Gonzalez, DOCCS had failed to make adequate proactive efforts to help him find SARA-compliant housing. While declining to list specific actions DOCCS must take, the majority rejected DOCCS' "passive approach of leaving the primary obligation to locate housing to an individual confined in a medium security prison facility 100 miles from his family and community, without access to information or communication resources beyond that afforded to other prison inmates ...." Jill K. Sanders of the Center for Appellate Litigation represented Gonzalez. 
Reminder: State Loan Forgiveness Program Application Deadline is May 1. The application for the state's District Attorney and Indigent Legal Services Attorney Loan Forgiveness Program (Education Law § 679-e) is available on the NYS Higher Education Services Corporation (HESC) website . The application deadline is May 1, 2017. For more information about the state loan forgiveness program, contact HESC at 1-888-697-4372 or scholarships@hesc.ny.org

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