2nd honker
Dec. 31, 2015
News Picks from NYSDA Staff
News Picks
440.20 Motion is Appropriate Way to Correct Wrongful Predicate Felony Offender Adjudication Based on Out-of-State Conviction. In a 5-1 decision, the Court of Appeals held a CPL 440.20 motion is a proper method to challenge an out-of-state felony conviction as not equivalent to a New York felony for purposes of the second felony offender law. People v Jurgins, 2015 NY Slip Op 09311 (12/17/2015). The case is noteworthy because the Court held the defendant failed to preserve the challenge for review on direct appeal by raising the non-equivalency issue at sentencing. Nevertheless, in an opinion by Judge Stein, the majority held the issue could be raised for the first time in a CPL 440.20 motion. "Raising the predicate felony sentencing issue in a CPL 440.20 serves the goals and purposes of the preservation rule by permitting the parties to present their arguments on the issue in the trial court, creating a record for appellate review, and allowing the trial court the first opportunity to correct any error." (Footnote omitted). On the merits, the majority held the defendant's prior conviction for robbery in the District of Columbia did not quality as a predicate felony conviction because the elements did not match New York's robbery statute.
DOCCS, Plaintiffs Reach Settlement in Solitary Confinement Suit. A settlement was reached this month in a federal class action lawsuit brought against the Department of Corrections and Community Supervision (DOCCS) in 2011 for its solitary confinement practices. The settlement calls for DOCCS to significantly reduce the types of behavior for which isolation can be imposed and the length of isolation sentences; change the conditions of such confinement; and release over 1,000 people currently in solitary into alternative housing programs. The parties have submitted the settlement agreement for approval by Judge Shira Scheindlin. Details about the settlement are available in releases from the New York Civil Liberties Union (NYCLU) and DOCCS , as well as from media ranging from the Politics on the Hudson blog to the New York Law Journal . The NYCLU has been litigating the suit along with pro bono co-counsels Morrison & Foerster and Benjamin N. Cardozo School of Law Professor Alexander Reinert.
The New York State Correctional Officers and Police Benevolent Association criticized what it called the unilateral taking away of disciplinary tools. But reports from other states, including Colorado and Maine , indicate that solitary confinement reforms similar to those required by the New York settlement are working well.
Among the changes to the conditions of isolated confinement within DOCCS will be an end to punishing people in solitary by providing food in the form of a nearly inedible "loaf" that has been likened to packing material. The New York Times, reporting on the demise of "the loaf," noted that its use had already been declining in New York and across the country.
As noted by Solitary Watch, the changes to be wrought by the settlement are incremental. Advocates like those in the New York Campaign for Alternatives to Isolated Confinement and some legislators are working for a full and permanent end to isolated confinement in New York. A bill called the Humane Alternatives to Long-Term Solitary Confinement Act ( HALT ) would bar use of isolation for more than the 15-day limit recommended by the United Nations Special Rapporteur on Torture and codified in new UN "Mandela Rules."
New Court Rules on Cameras-in-Court Contravene Controlling Law. In contravention of the Court of Appeals ruling in Courtroom Television Network LLC v State of New York (5 NY3d 222 [2005]) , which held that changes to the law regarding the audio-visual recording and broadcast of court proceedings could not be accomplished by rule but required legislative action, the Unified Court System has announced rule changes that will permit commercial news organizations to film and broadcast courtroom proceedings. The Administrative Board of the Courts has approved the amendments to the Rules of the Chief Judge (22 NYCRR Part 29) and the Rules of the Chief Administrative Judge (22 NYCRR Part 131); Part 131 will take effect on Feb. 15, 2016 and Part 29 will be presented to the Court of Appeals for approval early next year.
The new rules  cite the Civil Rights Law 52 prohibition on audio-visual coverage of "proceedings in which the testimony of witnesses by subpoena or other compulsory process is or may be taken" (131.1[b]), but then go on to permit a news media organization to make an oral or written application to the presiding trial judge at any time. The amended rules provide limited opportunity or grounds for parties to object, but they do require consultation with counsel on both sides; review of the presiding trial judge's decision is precluded. Restrictions on film and broadcast access do include a prohibition on the recording of juries and jurors, parties, and witnesses giving testimony, and consent of all parties is required for the audio-visual coverage of suppression hearings (131.3 et seq.)
NYSDA's comments in opposition to the rules, as well as other submitted comments, are available here (NYSDA's comments commence on p. 14 of the PDF). A full review of the new rules regarding audio-visual coverage of court proceedings will be included in a future issue of the Public Defense Backup Center REPORT.
New Rules Will Make Attorney Disciplinary Process Uniform Statewide. Effective July 1, 2016, New York attorneys will be subject to a uniform process for disciplinary matters statewide. Announced by Chief Judge Jonathan Lippman in his last week before mandatory retirement, the rules were adopted by the four Appellate Division departments following public comment and upon the recommendation of the Administrative Board of the Courts. Touted as providing "a harmonized approach to the investigation, adjudication and post-proceeding administration of attorney disciplinary matters," the rules will be promulgated as 22 NYCRR Part 1240 and can be read here. Chief Administrative Judge Lawrence Marks lauded the new rules and the participation of the bar in commenting on the proposed rules, noting that "'[m]any of the comments were adopted'" and that "'[o]thers will be considered going forward, now that the Appellate Division speaks with a uniform voice on this vital topic.'"

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