2nd honker
Apr. 30, 2018
News Picks from NYSDA Staff

News Picks
CAL Offers Insight into 2017 Legislation Allowing Evidence of Photo-Array Identifications. In its April issue of Issues to Develop at Trial , the Center for Appellate Litigation (CAL) provides information and ideas, courtesy of The Legal Aid Society (LAS), on legislation from 2017 allowing photo-array identification evidence to be introduced. Like CAL, NYSDA appreciates the work and generosity of Peter Mitchell (LAS Director of Training) and John Schoeffel (LAS Attorney, Special Litigation and Training Units), whose outstanding CLE on the subject provides the basis for the article. They presented on the topic at NYSDA's Annual Meeting, as noted in the July-Oct. 2017 issue of NYSDA's newsletter, the REPORT (p. 4). NYSDA also appreciates CAL's generosity in making this and other information available to public defense providers across the state. Prior editions of Issues to Develop at Trial are available here
Court of Appeals Information Available from CAL, Others Information provided by CAL about cases in the state's highest court includes the Court of Appeals Update, which provides " a list of significant criminal cases pending in the New York Court of Appeals and the issues presented," and "Eye on Eagle," which provides links to recently decided Court of Appeals decisions. These resources, along with NYSDA's case summaries in the REPORT and links on the Court's own website, help busy practitioners keep up with new and developing issues. On the Court's site, visitors can: search the docket; view webcasts of oral arguments ; review case summaries prepared by Court staff before argument, based on the filed briefs; and read issued decisions .

Persistent Felony Offender Sentences Abolished for Drug and Marijuana Felony Convictions. The Appellate Division, Fourth Department has held that defendants convicted of drug and marijuana crimes cannot be sentenced as persistent felony offenders under Penal Law 70.10. The persistent felony offender sentencing option was abolished for these crimes as part of the 2004 Drug Law Reform Act. In People v Boykins (2018 NY Slip Op 02919 [4/27/2018]), the Fourth Department adopted reasoning first articulated by Arthur Hopkirk in a 2008 article published in the Backup Center REPORT. See Defense Practice Tips - Are Life Sentences Still Possible Under the Reformed Drug Laws? Penal Law 60.04 provides that "notwithstanding the provisions of any law," the sentencing of drug and marijuana offenders shall be governed by Penal Law 70.70 and 70.71. The court held that this express direction eliminated a court's power to look outside of Penal Law 70.70 and 70.71 (i.e., to Penal Law 70.10) for additional sentencing authority. Abolition of persistent felony offender sentencing for these crimes is not only clear from the express terms of the statute, the Appellate Division noted, it is consistent with the purposes of the 2004 DLRA. The court wrote: "As noted by the Court of Appeals, 'when the legislature enacted the ... DLRA, it sought to ameliorate the excessive punishments meted out to low-level, nonviolent drug offenders under the so-called Rockefeller Drug Laws, and therefore the statute is designed to spread relief as widely as possible, within the bounds of reason, to its intended beneficiaries' .... We believe that our interpretation of the DLRA is consistent with the remedial purpose of the DLRA, and we therefore conclude that Penal Law §§ 60.04 and 70.70 operate to preclude a court from sentencing a defendant found guilty of a qualifying drug felony as a [persistent felony offender]." The 2004 DLRA applies to crimes committed on or after Jan. 13, 2005. Defendants sentenced as persistent felony offenders for drug crimes committed before that date are eligible for resentencing under the Act. See People v Coleman, 24 NY3d 114 (2014).  

IDP Issues Practice Advisory on Dimaya Ruling. As succinctly described by the ABA Journal, the US Supreme Court ruled on Apr. 17, 2018, that "[a] provision in a federal law authorizing deportation of immigrants convicted of a crime of violence is unconstitutionally vague ...." The Immigrant Defense Project (IDP) in New York City and the National Immigration Project of the National Lawyers Guild have issued a Practice Advisory about the case: " Sessions v. Dimaya: Supreme Court strikes down 18 U.S.C. § 16(b) as void for vagueness ." The advisory describes the decision, offers suggestions as to other statutes that are arguably vague under Dimaya and the precedent underlying it, and suggests strategies for affected cases.
Some commentators discussing the decision in Sessions v Dimaya stressed that Justice Gorsuch joined a plurality of Justices Kagan, Ginsburg, Breyer, and Sotomayor, while Justices Kennedy, Thomas, and Alito, as well as Chief Justice Roberts, dissented. A post on the Federal Defenders of New York Blog noted that "Gorsuch's concurrence ... includes a strong defense of the void-for-vagueness doctrine under orginalist principles as 'a faithful expression of ancient due process and separation of powers principles the framers recognized as vital to ordered liberty.'" Other writers have optimistically wondered if Dimaya could presage a reining in of civil forfeiture and/or mass incarceration .

NYSDA and ILS Release New York State Parent Attorney Perspectives Podcast 2. NYSDA has again collaborated with the Office of Indigent Legal Services (ILS) to produce Podcast 2 , the second of a series of comments in NYS Parent Attorney Perspectives. (Note: the podcast automatically begins playing when you click on the link.) This podcast features two special guests from the Hiscock Legal Aid Society: Nancy Farrell, Family Court Program Supervising Attorney, and Amanda McHenry, Assistant Supervising Attorney. They discuss how their office is managing to participate in the completion of the parenting time written policy, which the Office of Children and Family Services (OCFS) has directed each county to produce ( 17-OCFS ADM-14 ). In Podcast 1 , the implications of this directive were discussed with Adele Fine, Family Court Bureau Chief at the Monroe County Public Defender's Office. (Note: the podcast automatically begins playing when you click on the link.) In the second podcast, the special guests discuss how, in addition to participating in the creation of the written document, they've used the language in the OCFS directive to argue for improvements in parenting time for clients even before the county's written policy is completed. The podcast is available on both the ILS and NYSDA websites. Materials in support of increasing parenting time, including an Order to Show Cause and Notice of Motion, are also provided.

NYSBA House of Delegate Votes to Support State Funding & Oversight for Mandated Parent Defense. On April 14, the NYSBA House of Delegates voted to support the recommendation of the NYSBA Committee on Families and the Law that "the Association support State funding and oversight of mandated representation provided to indigent parents pursuant to the Family Court Act and the Surrogate's Court Procedure Act." The NYSBA staff memorandum (Agenda Item #9) and attached Memorandum In Support Of State Funding For Mandated Parental Representation note the addition of provisions intended to improve the quality of criminal defense statewide in the NYS state budget last year and the Committee's position that mandated parental representation is as important as mandated criminal defense representation. The report compares and contrasts the current county-based delivery system of mandated parental representation with the statewide oversight and funding of the provision of other legal services, including the representation of children. The webcast of the House of Delegates vote can be found here . (Note: the video automatically starts playing when you click on the link.)

Continuing Developments Regarding Fingerprint Evidence. Two recent developments regarding fingerprint evidence described below not only provide new material for defense counsel to consider when faced with such evidence but also serve as general reminders that fingerprint evidence should not be considered unchallengeable.
NIJ Announces New Software Intended to Assist Fingerprint Examination . As noted in a Mar. 31, 2018 post on TechBeat, the National Institute of Justice (NIJ) has released "an article and report on software developed to help improve detailed documentation of the latent print examination process ...." Dubbed "ACEware," the new tool "builds upon the pre-existing Universal Latent Workstation (ULW) application from the FBI Criminal Justice Information Services Division." The NIJ article , published in January 2018, notes that ACEware "is being reviewed by the FBI and has not yet been approved for release." But even without being released, ACEware's existence may serve a defense purpose; the NIJ article notes that the research leading to ACEware's creation was a response to the fact "that the current methods used by law enforcement agencies vary widely and, in part because of the lack of uniform training, lack standardization and quantifiability."
One of the official collaborators on the ACEware project was the New York State Division of Criminal Justice Services (DCJS); the August 2017 Final Technical Report on the development of ACEware includes, in an appendix, a short list of "Compliments Received" including from DCJS.
DOJ Approves Language for Fingerprint Analysis . In February 2018, the US Department of Justice (DOJ) announced the release of a document entitled Approved Uniform Language for Testimony and Reports for the Forensic Latent Print Discipline . It is meant to standardize language used by DOJ fingerprint examiners. While state or local examiners are not required to comply with the uniform language, it provides a reference for legal practitioners. As noted on the Forensic Science in North Carolina blog, "the new language makes some advances by limiting some past overstatements (such as prohibiting examiners from saying 'two friction ridge prints originated from the same source to the absolute exclusion of all other sources;' using terms like 'individualize' or 'reasonable degree of scientific certainty;' expressing 100% certainty; or implying that fingerprint examination has a zero error rate) ...."
The blog goes on to say that the approved language "still goes beyond what the data support." The American Association for the Advancement of Science (AAAS) has asked DOJ to revise the newly approved language to disallow statements that "'rest on speculation, rather than scientific evidence,'" as noted in an AAAS news release on Mar. 28, 2018.
In the last decade or more, forensic science criticism has eroded even fingerprint evidence's status. By the July 15, 2015 edition of News Picks, the 2009 National Academy of Sciences report on forensics had led to funding of efforts to conduct "a quality and gap analysis of ten forensic disciplines" including Latent Fingerprints. The AAAS published the resulting report on Latent Fingerprint Examination on Sept. 15, 2017. According to an AAAS news release , "the report says examiners should convey the high level of scientific uncertainty that underlies the analysis they are presenting in court and make clear the findings are subjective and not grounded in evidence." This is consistent with the admission in the NIJ article above about the lack of uniformity and quantifiability in latent print examination.
NYSDA works to help lawyers stay abreast of fingerprint issues. Recent examples include Ken Strutin's annotated bibliography on fingerprint challenges, completed just before the AAAS report noted above, and this News Picks item. Past information has included case summaries of decisions addressing hearsay issues related to admission of fingerprint examiners' reports and information about the State Police evidence-tampering scandal of the 1990s. A recent " step back in time " item in the Oneonta Daily Star highlighted that scandal, which led to "statewide changes in procedures for gathering evidence at crime scenes." It still serves as a reminder that when law enforcement says a client's fingerprints have been found in an incriminating location, defense work must not stop. Rather, that is the point at which investigation into the particulars of the prints' discovery and analysis must begin.

Association News
New Issue of NYSDA's Backup Center REPORT Available Now. The  Jan.-Mar. issue of the Public Defense Backup Center REPORT is now available on NYSDA's website. This issue of the REPORT includes reports on cell site location information, civil discovery developments regarding Facebook evidence, and ignition interlock caselaw, and descriptions of NYSDA training on welfare fraud prosecutions in Cayuga County and the 32nd Annual NYU Metropolitan Trainer. If you have any questions, please contact the Backup Center at 518-465-3524.

Upcoming NYSDA Training Programs. NYSDA's Statewide Training Calendar includes information about NYSDA training programs, as well as national conferences and webinars and training presented in New York State. NYSDA's upcoming CLE programs include:
May 4 : Cutting Edge Criminal Defense in Binghamton
May 17 : Third Department Criminal and Family Court Appeals Update 2018 (co-sponsored by the Appellate Division, Third Department) in Dryden (brochure coming soon)
June 1 : 2nd Annual Master Class in DWI Defense: Drug Edition (co-sponsored by the National College for DUI Defense and the Ontario County Public Defender Office) in Canandaigua
July 22-24 : 51st Annual Meeting and Conference in Saratoga Springs (brochure coming soon)

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