2nd honker
Apr. 28, 2017
News Picks from NYSDA Staff
News Picks
Streamlining Poor Person Status on Appeal - Recent Developments. Last November, Governor Cuomo signed into law CPL 380.55, which now authorizes trial court judges to discretionarily grant defendants poor person status on appeal at the sentencing proceeding ( L 2016, ch 459 [effective Nov. 28, 2016]). The statute applies when the defendant is already represented by assigned counsel in the trial court and counsel represents that the client remains financially eligible for poor person status. If the trial court denies the application, the defendant may then alternatively seek poor person status in the appellate court. [Coincidentally, the Appellate Division, Fourth Department revised its rules last year to require assigned counsel to affirmatively move for poor person relief whenever a client wishes to appeal ( 22 NYCRR 1015.7(a) ].
CPL 380.55 includes an ambiguous prefatory phrase ["Where counsel has been assigned to represent a defendant at trial(emphasis added)] that has led to confusion about whether the sentencing court may grant poor person status in all cases, or whether the relief is limited to judgments entered upon verdicts. But the comprehensive bill sponsor's memo makes clear that the option is available for all judgments of conviction, whether entered by plea or verdict. A December 2016 memo from OCA's Counsel's Office implicitly agrees with this interpretation, noting that the "new statute is designed to streamline the appellate process by allowing the trial court to make an indigency finding for purposes of assignment of counsel on appeal in cases where the defendant has affirmatively indicated an intent to appeal his or her conviction."
However, that same OCA memo cautioned judges to seek to "avoid pro forma applications and unnecessary assignments." It advised judges "to ensure that assigned counsel has discussed with the defendant whether meritorious grounds exist" for an appeal and that "following such discussion the defendant has affirmatively requested that an appeal be taken on his or her behalf." Therefore, in practice public defense lawyers may need to employ the new statute strategically, and refrain from making applications in situations where a particular judge might react unfavorably, and maybe even disruptively, to any discussion about an appeal at the sentencing proceeding (eg, where a client waived the "right to appeal"). An appeal waiver does not bar the filing of a notice of appeal (see, eg, People v Callahan, 80 NY2d 273 [1992]), and the Rules of the Appellate Division require that counsel advise clients in writing of the right to appeal, and if the client wants to appeal, counsel must serve and file a notice of appeal. See 22 NYCRR 606.5(b)(1) [1st Dept]; 22 NYCRR 671.3(a) [2nd Dept]; 22 NYCRR 821.2(a) [3rd Dept]; 22 NYCRR 1015.7(a) [4th Dept]; see also ABA Criminal Justice Standards for the Defense Function , Standard 4-9.1; NYSBA 2015 Revised Standards for Providing Mandated Representation , Standard I-7(j).
When a trial court grants poor person status, counsel still must file a notice of appeal. Counsel should write a letter to the appropriate appellate court requesting assignment of appellate counsel, enclosing the notice of appeal and the poor person order signed by the sentencing judge. A sample form order granting poor person relief under CPL 380.55 is available here.

Constitutional Speedy Trial Motions the Subject of the Latest Issues to Develop at Trial. The Center for Appellate Litigation (CAL) has released its April 2017 installment of Issues to Develop at Trial. The featured topic this month relates to making and preserving CPL 30.20 constitutional speedy trial challenges. Unlike the more common CPL 30.30 challenges, 30.20 challenges survive guilty pleas. The bulletin outlines the essential features of such a motion, which must be made in writing prior to disposition.
The monthly CAL newsletter offers litigation strategies to challenge the use of evidence and preserve the record in a way that will hopefully lead to resolutions that protect our clients. Volume 2, Issue 4 is available here. Past editions of "Issues to Develop at Trial" are available on the CAL website ; many thanks to CAL for making this resource available.

Effectiveness of Appellate Counsel Challengeable in MHL Article 10 Cases. The Second Department held recently that, as "a claim of ineffective assistance of counsel may be raised in a Mental Hygiene Law article 10 proceeding," respondents who have appealed from such proceedings may seek coram nobis relief on the ground that appellate counsel was ineffective. While article 10 proceedings are civil rather than criminal, the potential consequences of an unfavorable determination "are uniquely severe," the court noted. It added that "a respondent's statutory right to counsel in a Mental Hygiene Law article 10 proceeding would be eviscerated if counsel were ineffective ...." The court found that the pro se appellant in Matter of State of New York v Wayne J. (2017 NY Slip Op 02798 [2nd Dept 4/12/2017]) failed to establish his ineffectiveness claim. 

First Department Affirms Dismissal of Allegations of Sex Abuse. The First Department has affirmed a family court's order dismissing a petition brought by the Administration for Children's Services (ACS) alleging that the respondent father sexually abused his child. At a hearing on the petition, ACS submitted testimony from the child's mother and out-of-court video statements made by the child during questioning by a child advocacy center examiner. The child did not testify at the hearing, the father made no admissions, and there was no physical evidence suggesting that the child had been assaulted. And the court denied ACS's request that a witness be qualified as an expert child sexual abuse validator. The First Department held that "the court properly exercised its discretion in refusing to qualify" the witness as an expert and, even if the witness was qualified, there was insufficient record proof. "The out-of-court statements of the child were not sufficiently corroborated to establish abuse by a preponderance of the evidence," the mother's testimony and the child's statements contained inconsistencies, and the allegations cannot be separated from the parents' ongoing custody dispute. Matter of Django K. , 2017 NY Slip Op 02593 (1st Dept 4/4/2017).

OCA Outlines Plan to Improve Interpreting Services. A new document, Ensuring Language Access - A Strategic Plan for the New York State Courts, describes the work of the Office of Language Access, created by the Office of Court Administration (OCA). The report focuses on promised actions, such as establishing "protocols by which attorneys and other justice partners can notify the court, at the earliest possible point of contact with the court system, that an individual requires language access assistance." Another is creating "online resources on language access that are geared to attorneys, including best practices for working with court interpreters ...." Accessing interpreting services electronically is addressed, including a plan to develop standards by December 1, 2017 that "should, in part, ensure that the remote interpreter can view documents that need to be translated on the record and permit confidential attorney-client conferences."
The report also contains information that may be of current assistance to lawyers or clients arguing that they need interpretive/translation services. For instance, the report recognizes the existence of "significant points of contact between court users and the justice system" at which the absence of language services can effectively deny access to the courts. Potentially helpful statements include, "A court should not order an LEP [Limited English Proficiency] individual to participate in a program that does not provide appropriate language accessible services." If a court is balking at providing services that LEP or deaf or hard-of-hearing clients need to fully understand their legal matter, the report may be persuasive, or at least suggest to lawyers possible next steps.

Other potential sources of language assistance include:

New Law on Translation of Certain Orders of Protection. This year's New York State budget includes a new law requiring the translation of certain orders of protection. Part BB of L 2017, ch 55 amends Judiciary Law 212(2) to require the Chief Administrative Judge to make translation services available to all supreme and family courts to assist in the translation of orders of protection and temporary orders of protection, "where the person protected by and/or the person subject to the order of protection has limited English proficiency or has a limited ability to read English." The Chief Administrative Judge must make translation services available in the 10 languages most frequently used in the courts of each judicial department, with incremental steps over a four-year period, and any additional languages deemed appropriate. Part BB also contains amendments to Family Court Act 169 and Domestic Relations Law 240 and 252. Additionally, the law requires the creation of pilot programs, one in a town or village court in each judicial district and one each in a New York City county and two counties outside New York City, to develop best practices for the use of written translation and interpretation services for orders of protection and temporary orders of protection. Part BB takes effect on July 19, 2017.

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