2nd honker
Aug. 31, 2016
News Picks from NYSDA Staff
News Picks
Center for Appellate Litigation's Issues to Develop at Trial: Second Amendment Challenges to Penal Law 265.01(1). The Center for Appellate Litigation (CAL) has released its August 2016 installment of Issues to Develop at Trial. The featured topic this month relates to challenging prosecutions under Penal Law 265.01(1) (fourth-degree criminal possession of a weapon) on sufficiency and constitutional grounds. The article looks at the United States Supreme Court decisions in District of Columbia v Heller and Caetano v Massachusetts and presents ideas for making Second Amendment challenges to the per se nature of the statute. The CAL newsletter offers litigation strategies to challenge the use of such evidence and preserve the record in a way that will hopefully lead to a resolution that protects our clients. Volume 1 Issue 4 is available here .

Governor Signs Bill Encouraging Contact Between Siblings Separated Because of Abuse and Neglect Matters . Governor Cuomo has signed into law a bill that confers standing to a child and others to petition the court to order visitation with siblings, including half-siblings, when a child is removed from the home pursuant to a Family Court Act article 10 (allegations of abuse or neglect) proceeding. Chapter 242 of the Laws of 2016 amends several sections in Family Court Act article 10 and Social Services Law 384-b. This bill addresses the statutory silence on the rights of siblings to have contact with one another if they are removed from the home and not placed together, which Professor Merril Sobie noted in his McKinney's Practice Commentary on Family Court Act 1085. The bill was recommended by the Family Court and Rules Advisory Committee and was introduced at the request of the Chief Judge and is a codification of a New York State Office of Children and Family Services Administrative Directive (15-OCFS-ADM-01) issued last year. Chapter 242 was signed on Aug. 18 and goes into effect Nov. 16, 2016. Right 4 of the Bill of Rights for Children and Youth in Foster Care also sets forth the rights of children to continue their relationships with their siblings. The Bill of Rights is available here (scroll down to 15-OCFS-ADM-18).

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Judge Precludes Admission of Results of STRmix DNA Analysis. St. Lawrence County Court Judge Felix J. Catena has granted defense counsel's motion to preclude the prosecution from offering expert testimony regarding the results of DNA analysis using STRmix software and random match probability (RMP) in an upcoming murder trial. Specifically, the court found that the prosecution could not introduce STRmix results because the prosecution cannot lay a foundation for the introduction of the evidence where the State Police has not performed internal validation studies for the use of STRmix on casework samples developed in its lab. Standards promulgated by the DNA Subcommittee of the New York Commission on Forensic Science and ASCLD/LAB require such validation studies. The court also concluded that the RMP results are unreliable where the prosecution's expert, Dr. John S. Buckleton, testified that the results "cannot adequately account for the absence of defendant's alleles in the composite profile" and thus "is not conservative and doesn't do a fair job for the defendant ...." The court did, however, "find[] that STRmix has been developmentally validated and is generally accepted as reliable within the scientific community ...."
There are ongoing questions regarding the use of statistical software that interprets DNA mixtures, such a STRmix, TrueAllele, and the NYC Office of the Chief Medical Examiner's Forensic Statistical Tool, which are being addressed by the New York Commission on Forensic Science and courts around the country. Prior issues of News Picks (see July 15, 2015 ; Jan. 30, 2015 ) and the REPORT ( Jan-Apr 2016 [pp.5-6]; May-July 2015 [p. 4]) have addressed this topic. For more information, please contact the Backup Center.

IDP Seeks Examples of Prosecution under Penal Law 260.10(1). The Immigrant Defense Project (IDP) is looking for the defense bar's help with litigation challenging the use of Penal Law 260.10(1) (endangering the welfare of a child) as a ground of deportation. Currently, the federal government treats convictions for 260.10(1) as deportable offenses. IDP is filing an amicus brief in support of a petitioner who is challenging this at the Second Circuit. IDP is asking for examples of minor conduct for which prosecution under 260.10(1) has been, at the very least, initiated. Examples of minor conduct might include home alone cases, dirty households, and marijuana use in front of children, but they are open to any other examples you can provide. The evidence of prosecution could include: (a) complaint or other charging document; (b) plea minutes or minutes from other court appearances; and/or (c) criminal/supreme court motions and other pleadings. Conviction under 260.10(1) is not required.They only need to show that a defendant was charged under this criminal statute. So, for example, if your client was charged and arraigned under 260.10(1) for leaving her child at home for one hour but pleaded guilty to 240.20 (disorderly conduct), the complaint is sufficient to show prosecution. If you or an affiliated defender represented a client who pleaded guilty under this statute, and the complaint alleges some of the minor conduct described above, the charging document and plea minutes together would be very useful to this litigation. If you have cases that might be useful, please contact Lee Wang (IDP Skadden Fellow) directly at lee@immdefense.org or (646) 760-0590.

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Parole Update: Law Amended, Reform Demands in the News. The Governor has signed legislation that amends Executive Law 259-i(2)(c)(A) to clarify that victims do not need to submit new statements each time the Parole Board considers release of the person convicted of harming them. L 2016, ch 130 . The amendment adds "current or prior" to the requirement that statements by victims must be considered and requires that any victim statement given to the Parole Board be maintained in the file provided to the Board whenever a person in the custody of the Department of Corrections and Community Supervision is interviewed for parole. Also added is a provision that if a victim requests a transcript of the interview, the transcript shall be provided as soon as it is available. The bill takes effect on Oct. 19, 2016.

Detecting any effect of these changes on what victims do or on Board decisions will be difficult; lawyers may wish to include this law as part of the information they provide to clients regarding the realities of prison sentences. (See Standard 20 of the Client-Centered Representation Standards: "Clients Want a Lawyer Who -- Accurately informs the client who may be incarcerated about the incarceration process, including jail and prison programs, and works with the client to plan the future in terms of treatment while incarcerated, transitional issues, and reentry.")

Meanwhile, legal and political struggles to secure fair consideration for release by the Parole Board continue. In May, a judge held the Board in contempt after it again denied release to 69-year-old John MacKenzie despite his exemplary institutional record, leaving the judge to conclude that parole was denied based solely and therefore illegally on the underlying crime. The Second Department recently reversed a similar contempt holding. In July, John MacKenzie died of an apparent suicide after being denied release yet again - his tenth denial. Media outlets picked up MacKenzie's story; the Village Voice noted that he was denied release despite having participated in prison programs, secured funding for a program in memory of his own victim to provide an opportunity for victims "to speak directly to prisoners about the impact of their crimes," and earned three degrees. Protests planned by groups such as RAPP (Release Aging People in Prison), Parole Justice New York , the New York State Prisoner Justice Network , and others occurred across the state. Among the demands is passage of reform legislation known as the SAFE Parole Act , which NYSDA, the Correctional Association, and many others have endorsed.

Implicit Bias Video for Defense Lawyers. In early August, the American Bar Association (ABA) posted an announcement about the video, "Hidden Injustice: Toward a Better Defense." This ten-minute video is described as "the first tool of its kind to raise awareness and provide practical tips for America's public defenders and defense attorneys on the impact of implicit bias and the necessary steps to combat it." As noted in the May-July 2016 issue of NYSDA's newsletter, the REPORT (pp. 3-5), a growing number of resources on implicit racial (and other) bias is available to assist in understanding, identifying, and pushing back against the discriminatory effect of unconscious assumptions.

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