2nd honker
Dec. 29, 2016
News Picks from NYSDA Staff
News Picks
Setting the Stage for Appeal of Sentence as Unduly Harsh. The December 2016 issue of the Center for Appellate Litigation's Issues to Develop at Trial addresses how a trial attorney can lay the groundwork for an appellate argument that a client's sentence is unduly harsh. "[M]aking a record is not just important for the obvious purpose of influencing the sentencing court, but also to support appellate arguments for sentencing reduction [because] appellate courts can reduce sentences even if the lower court did not abuse its discretion and even if the sentence was imposed pursuant to negotiated plea, with no risk that the prosecution can then withdraw its consent to the plea." [Emphasis omitted.] A comprehensive record at sentencing may also be useful for parole because the Board of Parole receives a copy of the sentencing minutes, which "may be the only way the Board learns of mitigating factors or your client's personal circumstances." Prior editions of Issues to Develop at Trial are available at www.appellate-litigation.org/issues-to-develop-at-trial.

Forensic Science Commission Special Meeting on Familial DNA Searching on Feb. 10, 2017. The New York State Commission on Forensic Science and the Commission's DNA Subcommittee will be holding a special meeting about familial DNA searching on Feb. 10, 2017 in Manhattan. Those interested in speaking at the meeting must submit written comments to the Commission by Jan. 18, 2017. The Commission and the DNA Subcommittee are considering whether to amend New York State regulations to authorize familial DNA searching. More information about the meeting is available here.
The meeting was scheduled after the Queens District Attorney asked the Commission to allow broader DNA database searches. The Forensic Science Commission discussed the Queens DA's request at its December 9 meeting (video of the meeting is currently available on the Division of Criminal Justice's website at http://www.criminaljustice.ny.gov/pio/openmeetings.htm; the discussion starts at approximately 123:00). T he Dec. 20, 2016 issue of The Legal Aid Society DNA Newsletter has information about familial DNA searching.

NACDL Releases Primers on Surveillance Programs and Technologies. The National Association of Criminal Defense Lawyers (NACDL) has released primers on three surveillance programs and technologies: Automated License Plate Readers, Cell Phone Location Tracking, and Cell Site Simulators. These primers introduce defense attorneys to surveillance programs and techniques that are increasingly being used in the criminal justice system and creating new Fourth Amendment concerns. In addition to explaining the function and use of the technology, the primers also include ways to identify usage, defense strategies for challenging the technology, and additional resources. NACDL expects to update these primers periodically. Attorneys who want more information about surveillance technologies are encouraged to contact the NYSDA Backup Center.

ABA Adopts New Criminal Justice Standards on Mental Health . Supplanting standards issued in August 1984, new Criminal Justice Standards on Mental Health were adopted by the American Bar Association (ABA) on Aug. 8, 2016. Among directives of particular interest to defense lawyers and their clients is Standard 7-1.4, "Roles of the attorney representing a defendant with a mental disorder." It calls on attorneys to: a) "provide client-centered representation that is inter-disciplinary in nature" and "be familiar with local providers and programs that offer mental health and related services to which clients might be referred in lieu of incarceration ..."; b) "work particularly closely with their clients to ensure that the clients understand their options"; c) "explore all mental state questions that might be raised"; d) "seek relevant information from family members and other knowledgeable collateral sources" and "share information about their clients with family members and knowledgeable collateral sources only with their clients' assent"; and e) when representing clients in specialized courts, to know and abide by draft standards from the ABA concerning such courts.
The standards define the roles and duties of various justice system and mental health professionals in the different justice contexts in which mental health issues arise. They also urge law schools to provide students with opportunities to become familiar with the issues dealt with in the new standards and call for wide dissemination of the standards. These extensive standards are available on the ABA website.  A paper by Christopher Slobogin about the new standards appears in volume 44 of the Hastings Constitutional Law Quarterly. 

Change in Federal Child Support Regulations Calls for Consideration of Incarceration. On Dec. 16, 2016, the federal Health and Human Services' Administration for Children and Families "announced a new rule to make state child support enforcement programs more effective, flexible, and family-friendly." The press release on the new rule touts "a more realistic approach to calculating child support payments," and lists highlights. Among them: the new rule prohibits "excluding incarceration from consideration as a substantial change in circumstances ...." A December 20 post at The Marshall Project underscored that the new rule "requires states to notify all parents incarcerated for more than six months of their right to ask the child support agency for a temporary reduction in payments."
As noted in the Federal Register announcement of the final rule, states may comply with the rule any time after the rule's effective dates (January 19 for all but an amendment to 42 CFR 433.152, which is effective on January 20). The dates by which states must comply with the various changes set out in the new rule are provided in the Federal Register.

December 2016 Issue of the New York Children's Lawyer Now Available. The most recent issue of the New York Children's Lawyer, published by the Appellate Divisions, is available here. This online-only publication appears tri-annually in April, August, and December. Prior issues of the publication are available through the websites of the Office of Attorneys for Children for the Third Department and the Attorneys for the Child Program for the Fourth Department. Contents of this issue include news briefs, a listing of "Recent Books and Articles," and case summaries.