2nd honker
Apr. 29, 2016
News Picks from NYSDA Staff
News Picks
Warning Required Before a Defendant Can be Removed from the Courtroom. A defendant who engaged in disruptive behavior that was not violent in nature and did not create an emergency warranting immediate removal was improperly removed during jury instructions, the Second Department has ruled. A new trial was ordered in a case where the judge struck from the record comments made by the defendant and told a court officer "to 'do what you need to do'" in the event of another outburst; the defendant was removed without further court comment when he again protested aspects of the proceedings. A defense motion for a mistrial was denied. The Apr. 13, 2016 decision in People v Burton (2016 NY Slip Op 02847) says that "the trial court erred in removing the defendant from the courtroom without first warning him that he would be removed if he continued his disruptive behavior ...."
NYS Domestic Incident Report Revised . The NYS Division of Criminal Justice Services (DCJS) has redesigned the Domestic Incident Report (DIR) form "to improve its format and enhance its effectiveness and usability by law enforcement professionals. These improvements make it easier to complete the form accurately and allow law enforcement to capture additional information, making the form more useful to law enforcement and enhancing the data included in the state's Domestic Incident Report Repository." The DIR instructions also include "a list of some frequently seen offenses in domestic violence incidents." DCJS has produced an online training program about using the new DIR, which takes about 30 minutes to complete. Additional documents provided with the training include an overview of the DIR Repository, a community action toolkit for addressing intimate partner violence against transgender people, and information about strangulation, including symptoms, visible signs, and interview questions.
The new DIR contains many of the same sections as the old form, but it provides additional space for comments and gives officers recommended wording for particular questions. For example, regarding prior domestic violence history, the recommended wording is: "Has ____ ever hurt you, threatened harm to you or others, made you afraid, or forced you to do something that you didn't want to do (prior to this incident)?"  And as to victim fear: "Are you currently concerned or in fear for your safety or the safety of someone else because of ____'s behavior?" The note accompanying that question is: "Document specific fear and reasons for it. Fear may be an element of an offense (e.g. menacing, coercion, stalking, etc.). Also, document in statement of allegations." The new form also includes a section with questions that are used to conduct a lethality assessment; questions asked include whether the suspect has ever "Threatened to kill you or your children"; "Is suspect capable of killing you or your children?"; and "Is suspect violently and constantly jealous of you?"
The section of the form for safe contact information for the individual identified as the victim now prompts investigating officers to ask for an email address. According to the training, this will assist in the "timely prosecution" of cases because prosecutors can use the email address to obtain a supporting deposition or corroborating affidavit from the complainant and such an electronic document has been accepted in court proceedings. There are a few trial court decisions holding that, under certain circumstances, a reply from the email address of the complainant is sufficient to meet the subscribed and/or verified requirements of CPL 100.20, 100.30. See, eg, People v Sanchez, 47 Misc 3d 612 (Criminal Ct, Queens Co 1/28/2015). However, it does not appear that there are any appellate decisions directly on point. An email exchange between the prosecution and an email address alleged to be the complainant's that is being used to meet the subscription and verification requirements should be carefully analyzed and challenges made where appropriate.
State Focuses on Ignition Interlock Use. The past week has brought several press releases and other news about individuals using or failing to use ignition interlock devices and enforcement efforts.
  • On Apr. 25, the State Comptroller released an audit of ignition interlock program monitoring that focused on six counties: Cortland, Erie, Montgomery, Otsego, Suffolk, and Wayne. The audit found that "[a]ll six counties in our audit had a process for monitoring installations and negative IID activities of operators, and generally worked with operators to ensure compliance. However, county-designated officials responsible for such monitoring did not consistently report operator violations to the appropriate court and district attorney as required." Specific findings included that out of 215 cases with installed ignition interlock devices reviewed, 70 cases had negative activity, but in 55 of those 70 cases, the negative activity was either not reported (in Cortland, Erie, Montgomery, Otsego, and Suffolk) or not reported in a timely manner (in Cortland, Suffolk, and Wayne). County responses to the audit results noted that, in some cases, the court or district attorney instructed the monitor to stop reporting negative activity, and that in certain probation cases, probation officers used graduated sanctions instead of reporting the negative activity. County responses and corrective action plans appear in the individual county reports at the links above. 
  • The Apr. 22, 2016 issue of the Office of Probation and Correctional Alternatives' newsletter, e-Focus, includes a practice tip about DWI prevention and accountability for probationers under supervision for a DWI offense that notes: "Many departments have successfully reinforced [probationer] accountability by having probation officers clandestinely observe DWI probationers for compliance as these individuals arriv[e] for scheduled probation appointment[s]." Another item in the newsletter reports that traffic tickets issued for violations of VTL 1198(7-a), driving without an IID, have almost tripled, from 726 in 2011 to 2,767 in 2014. 
  • The Governor's Traffic Safety Committee and DCJS have announced a pilot DWI-Ignition Interlock Enforcement initiative in three counties, Dutchess, Oneida, and Onondaga. The initiative, funded by a $100,000 grant, will allow the counties "to conduct enhanced enforcement activities targeting those who violate the state's ignition interlock requirements. The targeted enforcement will occur between Memorial Day and Labor Day ...." During the Apr. 19, 2016 meeting of the Probation Commission, there was a brief discussion about the enforcement program, including training of police, prosecutors, and probation on the ignition interlock laws and how to charge violations of IID conditions; a pocket card that was distributed at the training instructs police to ask drivers whether they knew they had a suspended or revoked license and knew they were subject to an IID restriction. Grantees will be reporting the number of tickets issued and probation violations, and a year from now, the conviction rate. The intention is to make this a yearly grant program. (Video of the meeting is available here; the discussion about the program starts at approximately 0:22:00.)
New Report Detailing the Toll of Incarceration on Families. The Annie E. Casey Foundation's data collection initiative, Kids Count, has released a report that details the number of children who have experienced parental incarceration across the country. In eight states, 10% or more of the child population experienced life without a parent as a result of incarceration from 2011 to 2012. "A Shared Sentence," published on Apr. 18, 2016, lists the negative consequences for children and families of the tough-on-crime policies of the last few decades. The areas of impact include economic instability, trauma resulting from the removal of a caregiver from a child's life, and depletion of community resources resulting from a parent's removal from the home.  Additionally, the report lists some of the barriers that parents and families face when they return home and make efforts to provide for their children. The report makes several recommendations to better serve the children and families who are or may be impacted by mass incarceration, including that "[s]tate and federal criminal justice systems should preserve family connections during incarceration by encouraging judges and other key players to consider the impact on kids and families when making sentencing and prison-assignment decisions." An article about the report appeared in the Apr. 25, 2016 edition of The Christian Science Monitor.
Reminder: State Loan Forgiveness Application Deadline is May 15, 2016. 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 15, 2016. Attorneys who received a state loan forgiveness award last year should receive a payment application and verification directly from HESC. For more information about the state loan forgiveness program, contact HESC at 1-888-697-4372 or scholarships@hesc.ny.org.
Association News
New Issue of NYSDA's Backup Center REPORT. The latest issue of the Public Defense Backup Center REPORT ( January-April 2016 ), which includes the 2015 Legislative Review, is now available on NYSDA's website ; the print version will be mailed out shortly.
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