2nd honker
Dec. 16, 2015
News Picks from NYSDA Staff
News Picks
Litany Still Not Required at Pleas, Boykin Claims Still Subject to Preservation. A majority of the Court of Appeals held on Nov. 24, 2015 that "the failure to recite the Boykin rights does not automatically invalidate an otherwise voluntary and intelligent plea ... [so long as] the record as a whole affirmatively shows that the defendant intentionally relinquished those rights ...." The majority also made clear "that the preservation requirement still applies to Boykin claims depending upon the particular circumstances of a case"; the decision rejected dicta in People v Tyrell (22 NY3d 359 [2013]) suggesting that failure to mention the trial rights set out in Boykin v Alabama (395 US 238 [1969]) could be a mode of proceedings error to which preservation rules do not apply. The Court reviewed the unpreserved claims in all three cases before it. Two defendants were found to have "intelligently and understandingly waived their constitutional rights." The third had not, as the record in Joseph Conceicao's case contained "no discussion of any of the circumstances surrounding" his plea or the rights he waived, did not indicate whether he spoke to his lawyer before entering the plea, and showed a limited interaction between the court and Conceicao, who said only that he wished to plead guilty.
Chief Judge Lippman and Judge Rivera concurred in Conceicao and dissented in the other two cases. Lippman criticized the continued eschewing of "'litanies,' 'catechisms,'" etc. as a "frankly provincial notion rooted in our pre-Boykin jurisprudence ...." He called the practice of relying on circumstances seeming to suggest that the required waiver would have occurred "a recipe for the toleration of slipshod practice and deficient pleas, particularly in busy courts handling non-felony cases where the temptation to shortcuts is understandably heightened." Rivera joined Lippman's opinion and wrote separately for two purposes: One, "to express my disagreement with the majority's decision to limit the grounds for preservation of Boykin claims ...." Two, to dissent in part in Conceicao "from the majority's failure to follow our established precedent of dismissing accusatory instruments where no penological purpose exists to remit."
The decision in People v Conceicao (2015 NY Slip Op 08615 [11/24/2015]) was cited in two memorandum decisions issued on the same day, People v Pellegrino and People v Sougou.
Another Split Decision Upholding DMV's Relicensing Rules. The Third Department, in a 3-2 decision, has upheld another provision of the DMV regulations that govern relicensing of drivers after multiple DWI convictions (15 NYCRR Part 136). Matter of Carney v New York State Dept of Motor Vehicles, 2015 NY Slip Op 08681 (3rd Dept 11/25/2015). In Carney, the majority held that 15 NYCRR 136.5(b)(1), which requires the Commissioner to deny an application for relicensing if the applicant's lifetime driving record shows five or more alcohol- or drug-related driving convictions, "does not exceed the scope of the Commissioner's rule-making authority." This holding is in line with the three-judge majority opinion in Matter of Acevedo v NYS Dept of Motor Vehicles (132 AD3d 112 [3rd Dept 8/6/2015]), which was discussed in the Aug. 18, 2015 edition of News Picks. In Acevedo, the majority concluded that the DMV Commissioner had the authority to promulgate 15 NYCRR 136.5(b)(3), the provision that addresses relicensing after three or four alcohol- or drug-related driving convictions within a 25 year look back period.
The two dissenting justices in Carney are the same two justices who dissented in Acevedo. The dissent, acknowledging the Commissioner's "extremely broad authority in regulating" relicensing, concluded that the Commissioner exceeded her administrative authority in imposing the lifetime ban in 136.5(b)(1). "In effect, the Commissioner has abdicated her statutory mandate to exercise discretion in the first instance in favor of a general rule mandating a permanent revocation, waivable only under limited and difficult-to-define circumstances." (footnote omitted).
Attorneys can get a copy of their clients' lifetime driving records from the DMV. More information about driver's license penalties for multiple convictions is available on the DMV website.
KIDS COUNT 2015 Data Book Available . The NYS Council on Children and Families has produced the New York KIDS COUNT 2015 Data Book that details, by county and congressional district, information about the well-being of New York children as measured by specified indicators known as the New York State Touchstones. The Touchstones framework is made up of six major life areas: family, economic security, physical and emotional health, education, citizenship, and community. Commissioners and directors can use the Touchstones to quantify progress in addressing conditions that can impede healthy and successful maturation in different communities. Family defense practitioners can use the Data Book to learn about the resources available to families in the communities where they practice and surrounding communities. The Council on Children and Families also regularly tracks data through its Kids' Well-being Indicators Clearinghouse (KWIC), including data about child abuse and maltreatment reports, foster care, and termination of parental rights. The Annie E. Casey Foundation provides financial support for New York State KIDS COUNT and KWIC.
New York Immigrant Family Unity Project (NYIFUP) Expands to Ulster Immigration Court. Defenders who have clients in DOCCS custody awaiting immigration proceedings should be aware that, as of November 2015, some clients might not have to face deportation proceedings on their own thanks to a grant given to Prisoners' Legal Services of New York (PLSNY) by the Vera Institute-administered New York Immigrant Family Unity Project (NYIFUP), with funding from the NYS Assembly. With this grant, PLSNY will assist approximately 10% of individuals who appear in the Ulster Immigration Court in Napanoch, NY. PLSNY has been doing intake at that court since last month and could reach its funding limit by the end of March.
Currently, Rosa Cohen-Cruz and another staff member at PLSNY are handling the immigration cases at the Ulster Immigration Court. PLSNY is unable to take referrals and can only take cases scheduled for initial appearance on days assigned to them by the Immigration court. But the assignments are merit blind, meaning that any individual who appears for an initial hearing in Ulster Immigration Court on a PLSNY staffing day will be represented as long as the person: 1) is unrepresented; and 2) meets financial eligibility requirements, which, according to Marina Caeiro at the Vera Institute, are generous. Defenders with questions about what will happen when a client who is facing immigration proceedings enters DOCCS custody may contact Rosa Cohen-Cruz at (518) 438-8046. 
Framing Traffic Stop Challenges Under Heien and Guthrie. The question of whether a police officer may conduct a constitutionally legitimate search and seizure when acting under a mistaken belief of the state of the law has been an evolving dilemma. In late 2014, the U.S. Supreme Court held in Heien v North Carolina (135 S Ct 530 [12/15/2014]), that a police officer's "objectively reasonable" mistake of law may give rise to the reasonable suspicion needed to justify a traffic stop under the Fourth Amendment. Up until this decision, lower courts around the country had differed on whether a search and seizure pursuant to a police officer's arguably reasonable mistake of law was constitutionally impermissible under the Fourth Amendment.
In April 2015, the Court of Appeals embraced Heien in People v Guthrie (25 NY3d 130), a case where a police officer who stopped a car for failing to stop at a stop sign in a parking lot was unaware that the sign in question was not subject to the Vehicle and Traffic Law. The divided Guthrie Court ruled that "the relevant question before us is not whether the officer acted in good faith [which would have been impermissible under the NYS Constitution], but whether his belief that a traffic violation had occurred was objectively reasonable ...." (emphasis added).
Despite the negative tones of Heien and Guthrie, however, the door is not closed to search and seizure challenges based on a mistake of law. The "objectively reasonable" standard requires careful scrutiny in each case to determine whether the threshold is met by the attendant circumstances. In an article published by the Harvard Law Review, the Supreme Court's decision in Heien is carefully examined and the complications inherent in any inquiry into what is "objectively reasonable" are explored in depth. This article illuminates the Second Department's examination of the complicated considerations in People v Bookman (131 AD3d 1258 [2nd Dept 9/15/2015]), where the Appellate Division in a 3-1 decision upheld a traffic stop and subsequent search and seizure under circumstances that demonstrated the police officer's questionable knowledge and understanding of the relevant law. This article should prove a helpful tool in framing challenges.
Third Department Proposes Amendments to Law Intern Rules. The Third Department has proposed amendments to its rules regarding the supervision of law student and law school graduate interns (22 NYCRR 805.5[b]) that would "require the 'immediate supervision' of law interns regarding legal services in all criminal matters and in contested civil actions and proceedings in or before any court or administrative agency." The existing rules require only general supervision. As provided in 22 NYCRR 805.5(e), "[i]mmediate supervision of a law intern shall mean that the supervising attorney shall be personally present throughout the proceedings." Comments on the proposed amendments must be received by Jan. 26, 2016, and should be sent by email to ad3-rulecomment@nycourts.gov or by mail to Robert D. Mayberger, Clerk of the Court, Appellate Division, Third Department, PO Box 7288, Capitol Station, Albany, NY 12224-0288.
The Third Department recently amended two other subdivisions of 805.5 that deal with applications for orders approving law intern programs and the requirements for supervising attorneys. Those amendments took effect Nov. 2, 2015.

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