2nd honker
Aug. 16, 2017
News Picks from NYSDA Staff
News Picks
Discovery Stories Still Needed for Reform Efforts. In the last issue of News Picks, we asked defense attorneys to provide information about their experiences with the lack of discovery to John Schoeffel, Staff Attorney with The Legal Aid Society's Special Litigation and Training Unit. (Correction: If you attempted to send a response by email, the email address in the prior issue was incorrect and you should have received a failure to deliver error). Interested defenders should complete this form and email your responses to John Schoeffel at JSchoeffel@legal-aid.org by Sept. 1, 2017.
As a reminder, defenders are encouraged to provide the following:

  • Egregious examples where discovery has impacted a client's case
  • District Attorney's offices that have worse practices than others
  • Brady violations

  • Practice 
    Practice Tips for Addressing "Expert" Testimony by Law Enforcement on Slang and Conversation Decoding. The Summer 2017 edition of the Center for Appellate Litigation's Issues to Develop at Trial provides practice tips for cases where counsel expects a prosecutor to present "expert" testimony by law enforcement personnel on topics such as the definitions of slang terms and the decoding of words in drug-related prosecutions. "Such testimony runs the obvious risk of bolstering the prosecution's case and usurping the jury's role, as the Court of Appeals recognized in People v. Inoa, 25 N.Y.3d 466 (2015)."  Prior editions of Issues to Develop at Trial are available at http://www.appellate-litigation.org/issues-to-develop-at-trial .

    Fingerprint Challenges Annotated Bibliography. NYSDA's Director of Legal Information Services, Ken Strutin, has written an annotated bibliography on fingerprint challenges that includes key state and federal cases, reference books, reports, guides, and manuals, and journal articles . Links are provided for resources that are available online. If you have a case involving fingerprint evidence, this comprehensive bibliography is a great starting point for your research.

    New "Quality and Gap Analysis" of Fire Investigation Published. The American Association for the Advancement of Science (AAAS) has published a report looking at the discipline of fire investigation and identifying areas "well founded in science" as well as "gaps in knowledge" in 25 areas. According to a post on the Forensic Resources blog, the report "notes that some research has found erroneous conclusions about point of origin in excess of 75%," concludes "that canine alerts should not be relied upon unless confirmed by laboratory analysis," and "contains an in-depth discussion of cognitive bias, the role it plays in fire investigation, and recommendations for minimizing bias in fire scene investigation ...." The report is available for downloading here , with a plain language summary available  here . The summary and report may provide information helpful to defense lawyers with current cases as well as serving to remind all involved in matters involving fire investigations that knowledge in the field is--and should be--evolving rapidly.

    Video Series on New York's Expanded Discretion Law under the Adoption and Safe Families Act . The Correctional Association of New York's Women in Prison Project (WPP) and Coalition for Women Prisoners' Incarcerated Mothers Committee has produced a series of videos regarding the 2010 law ( L 2010, ch 113 ) that expanded discretion under the federal Adoption and Safe Families Act. The first video offers an introduction to the expanded discretion law, which creates an exception to the requirement that an agency file for termination of parental rights if a child has been in foster care for 15 of the last 22 months in cases involving a parent who is incarcerated or in residential treatment. And there are individual videos tailored for judges , lawyers , caseworkers , and parents . Featured speakers include Tamar Kraft-Stolar (Director of WPP), Philip Genty (Columbia Law School), Tanya Krupat (Program Director of the New York Initiative for Children of Incarcerated Parents), and Corrine Lundstrum (Litigation Supervisor at The Center for Family Representation), as well as parents who have experience with navigating family court proceedings while incarcerated.

    Raise the Age Update. The Governor's office recently launched a Raise the Age (RTA) Implementation website that includes some basic information on the new "Adolescent Offender" category, supervision and treatment services (such as use of the "Program Treatment Model" by facilities housing Adolescent Offenders, joint administration of discharge planning services by the Office of Children and Family Services, Department of Corrections and Community Supervision, and county re-entry task forces, and expanded eligibility for the Supervision and Treatment Services for Juveniles Program ), and other resources. A presentation on RTA and Implementation is available at https://www.ny.gov/sites/ny.gov/files/atoms/files/RTAPresentation.pdf At NYSDA's recent Annual Meeting, Nancy Ginsburg (Director, Adolescent Intervention and Diversion Team, The Legal Aid Society) offered "A Preliminary Roadmap of the Raise the Age Law in New York State." Defense counsel may contact the Backup Center for materials from her presentation.

    LAC Webinars on Overcoming Criminal Record Barriers. The Legal Action Center (LAC) created a number of short webinars that defense attorneys may find helpful in informing their clients about some of the collateral consequences of a criminal conviction and overcoming some of the barriers a criminal conviction creates. LAC recently released part two of the series " Certificates of Relief and Good Conduct: What You Should Know. " Part one, released in 2016, provides basic information about New York's certificate of relief from disabilities and certificate of good conduct. It includes an overview of what they are, who qualifies, and what they cover, while part two gives more information about the application process.
    LAC's four-part series, " Moving Forward with a Criminal Record in New York State " (2016), provides general information about criminal records, criminal record-related housing barriers, employment discrimination against persons with criminal records, and evidence of rehabilitation. The Criminal Records webinar provides some information about sealing criminal records in New York State. Attorneys should be mindful that the New York State 2017-2018 fiscal year budget included a new section of the Criminal Procedure Law (CPL) 160.59, which authorizes sealing of criminal histories in limited circumstance and takes effect on Oct. 7, 2017. Additional information about CPL 160.59 can be found on page three of the Apr-June 2017 issue of NYSDA's Public Defense Backup Center REPORT.

    Second Successful Challenge to Probation Condition Prohibiting Suboxone. In the second case this year, the Legal Action Center (LAC) assisted a local defense attorney in challenging a judge's probation condition that a client stop treatment with Suboxone - a medication to treat opioid addiction. This case was before Judge Michael McGuire in Sullivan County. LAC would like to share its papers and strategies with other 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, recidivism, overdose, and death.
    LAC, local counsel (Edward Bruno), and pro bono counsel (Paul Weiss Rifkind Wharton & Garrison) argued that the requirement imposed by Judge McGuire violated Penal Law 160.50, the Americans with Disabilities Act, and Constitutional due process. Contact Sally Friedman at the Legal Action Center ( sfriedman@lac.org or 212-243-1313) for more information.

    Association News
    Gradess Retires after 39 Years as NYSDA's Executive Director. The staff at NYSDA celebrated Jonathan Gradess's 39 years of service to the Association on Friday, Aug. 11, 2017, his official retirement date. Charles O'Brien took on the role of Executive Director on July 1. We thank Jonathan for his dedication to NYSDA and wish him all the best in retirement!

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