2nd honker
April 5, 2018
News Picks from NYSDA Staff

News Picks
Practice Advisory: Police Recording Duty for Certain Custodial Interrogations.
The law on police recording of certain custodial interrogations went into effect on Apr. 1, 2018. The rule will be at issue in Huntley hearings and trials in some Class A and B felony cases.
Summary :  The new rule is found in C.P.L. §60.45(3) . It creates a recording obligation only in certain highly serious felonies: Class A-1 offenses (but NOT A-1 drug offenses), A-2 sex offenses, and B violent homicide and sex offenses. There are 10 "good cause" exceptions for non-recording listed in §60.45(3)(c). These include malfunctioning equipment, booking questions, "inadvertent error or oversight," and others.
Under the statutory terms, the recording has to begin with "custody" at a police station or other detention facility (i.e., at same time police must give the person Miranda warnings), so police would apparently have no obligation to record the initial parts of an interrogation when the person came to the stationhouse voluntarily, or allegedly voluntarily. See C.P.L. §60.45(3)(a).
There is no suppression remedy for police failure to comply with the recording obligation. Instead, the statute states that a failure to obey the recording rule can be a "factor" bearing on admissibility, but not the "sole factor." See C.P.L. §60.45(3)(b). How a judge should analyze this "factor" is unclear (e.g., does lack of a recording logically bear on involuntariness??).
If police improperly fail to record an interrogation and cannot show "good cause," the statute permits the defense to obtain a jury charge at trial. See C.P.L. §60.45(3)(d). But the instruction specified in the statute omits the key point that jurors could find that the police's version of the defendant's statement may not be "accurate" due to absence of recording -- it says only that it may be involuntary, or may not have been made at all. Furthermore, the specified jury charge seems to be unconstitutional because it instructs that the jury cannot disregard the defendant's statement "solely" due to lack of recording. We should object that this improperly shifts the burden (i.e., the defense must provide additional reasons), impermissibly restricts the jury's factual deliberations, and violates the constitutional rights to present a defense and to make the summation argument that this factor in itself is enough for reasonable doubt. Some judges might agree to modify the statutory charge upon request.
Finally, we assume that the issue of whether or not there was "good cause" for non-recording would be litigated at Huntley hearings -- alongside voluntariness and Miranda -- since the issues overlap and unexcused non-recording is a factor going to voluntariness under the statute. But technically a hearing judge might defer the issue of "good cause" to the trial judge or fail to make a definitive ruling (e.g., saying "Even if there was no good cause, I still find the statement to be voluntary beyond a reasonable doubt") and the issue may have to be raised again at trial to determine whether a jury charge on non-recording is needed.
This practice advisory is courtesy of John Schoeffel and Peter Mitchell of The Legal Aid Society; we appreciate their willingness to share it with others.
Note: As reported in the Jan.17, 2018 edition of News Picks, the Criminal Jury Instructions 2d on Statements (Admissions, Confessions) has been updated to add a section on failure to record a statement.
Right to Assignment of Counsel Not Subject to Imputed Income Inquiry. The Appellate Division, Fourth Department has ruled that in determining an individual's eligibility for the assignment of counsel under County Law 722, Family Court Act 262, and Judiciary Law 35, a court lacks authority to inquire into such individual's potential capacity to earn or to impute speculative income in making an eligibility determination.
In Carney v Carney (2018 NY Slip Op 02034 [3/23/2018]), the trial court denied the assignment of counsel after the public defender's office had qualified the respondent as eligible, and thereupon undertook a fact finding hearing to examine the respondent's earning potential based on his level of education and other factors. The trial court further made findings related to the legislative intent and public policy of the of the statutes guaranteeing the right to counsel and the interplay between that right and Domestic Relations Law and Family Court Act provisions that permit the imputation of income potential in making child support and spousal maintenance determinations.
The Appellate Division ruled that such an analysis, fusing the legal principles involved, was flawed and unauthorized. In finding the trial court's public policy rationale unsound and underscoring the intended policy to make eligibility determinations considering only a person's present financial status, the court stated: "Indeed, the legislature has specifically recognized that in proceedings such as those in this case, '[c]ounsel is often indispensable to a practical realization of due process of law and may be helpful to the court in making reasoned determinations of fact and proper orders of disposition' ...."
In April 2016, the New York State Office of Indigent Legal Services adopted "Criteria and Procedures for Determining Assigned Counsel Eligibility." The Criteria and Procedures and related documentation is available at https://www.ils.ny.gov/content/eligibility-documents .
Lexicon of Forensic Science Terms. The Organization of Scientific Area Committees for Forensic Science (OSAC) "has created a lexicon of over 4,000 terms organized by forensic discipline," as reported by the National Institute of Standards and Technology on Mar. 13, 2018. Disciplines include Physics and Pattern Interpretation (such as friction ridge, firearms and toolmarks, and bloodstain pattern analysis), Crime Scene/Death Investigation, Biology/DNA, Chemistry/Instrumental Analysis, and Digital/Multimedia.
Thank you to The Legal Aid Society and its DNA Newsletter for information on this valuable resource. For past issues of the DNA Newsletter and to subscribe by email, click here .

OCA Solicitation for Raise the Age Representation. New York's Raise the Age (RTA) law takes effect for 16-year-olds on Oct. 1, 2018 and for 17-year-olds on Oct. 1, 2019. There are many issues regarding implementation of RTA, including the critical issue of who will be representing these children. Regarding the representation issue, the Unified Court System (UCS, a/k/a OCA) has issued " Solicitation of Interest #014: Attorney for the Child Juvenile Delinquency Representation Services ." OCA is gathering information about options for addressing the expansion of juvenile defense services in Family Court that will be needed in light of RTA. Representation of juveniles in Family Court is funded by the USC through its Attorney for the Child (AFC) program, either through assigned counsel panels or contracts with institutional providers. The solicitation is directed to institutional providers of legal services. The deadline for responses to the Solicitation is Friday, Apr. 20, 2018 at 2:00 pm.
The RTA legislation passed last year included a provision requiring the State to reimburse counties for the of costs associated with the implementation of RTA. In the budget passed by the State Legislature last week (for the 2018/2019 state fiscal year), there is a $100 million appropriation for costs associated with RTA. On or after Apr. 1, 2018, counties must submit plans to the Office of Children and Family Services and Division of Criminal Justice Services identifying the costs for which reimbursement will be requested. The appropriation language appears in S7503/A9503 at pp. 1044-1047.
Reminder: May 1 Deadline to Apply for the State Attorney Loan Forgiveness Program. 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 deadline for filing an application is May 1, 2018. For more information on the state's loan forgiveness program, contact the HESC Scholarship Unit at  scholarships@hesc.ny.gov  or 888-697-4372.

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