2nd honker
Feb. 13, 2015
News Picks from NYSDA Staff

News Picks


Electronic Signature Supports Conversion of Misdemeanor Complaint. A Criminal Court Judge in Queens has ruled, over defense objection, that an electronic signature on a supporting deposition could be accepted to convert a misdemeanor complaint to an information. The court found that an accuser's email response to a prosecutor's email "constituted both a signature and a verification of the facts in the complaint as required under C.P.L. 100.20." The prosecutor's email had stated clearly that the accuser was to read the entire complaint, the supporting deposition, and that if she then typed "'I agree'" and her name in a reply to the email, she would be confirming the statements under penalty of perjury, just as if she had applied a handwritten signature. The court noted that the State Technology Law, which includes the Electronic Signatures and Records Act, provides in � 304(2) that an electronic signature has the same validity and effect as a handwritten signature. The prosecution, which submitted the complaint, email correspondence, and a supporting deposition of a prosecutor, showed that the accuser read the complaint, supporting deposition, and a form recounting the penalty of perjury, and understood the effect of her reply. The requirements of the CPL were found to have been met. People v Sanchez, 2015 NY Slip Op 25031 (Crim Ct, Queens Co 1/28/2015).


In a Jan. 30, 2015 New York Law Journal article (subscription required), defense attorneys interviewed about the decision expressed concerns about guaranteeing that the sender of a "signed" email was the person named in the document, and that the person affixing an electronic signature understood the gravity of doing so. "Queens District Attorney Richard Brown called the ruling a 'significant victory.'"


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Fourth Department Overrules Prior Requirement of Actual Prejudice in Family Court for Ineffective Assistance Claims. In Matter of Brown v Gandy (2015 Slip Op 01086 [4th Dept 02/06/2015]), an appeal of a Family Court Act article 6 proceeding, the Fourth Department rejected all its previous decisions that required a showing of actual prejudice for an appellant to claim ineffective assistance of counsel and instead concluded, "'because the potential consequences are so drastic, the Family Court Act affords protections equivalent to the constitutional standard of effective assistance of counsel afforded defendants in criminal proceedings' (Matter of Elijah D. [Allison D.] ,74 AD3d 1846, 1847 [internal quotation marks omitted])."


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Reversal of Neglect Finding in Article 10 Proceeding Where Infant's Mother Left the State. The Family Court determined that a 20-year-old mother had neglected her 1� year old child when she left that child in the care of a couple with whom they both lived so she could pursue an employment opportunity in another county. Matter of Lacy-Sophia T.-R., 2015 NY Slip Op 01123 (4th Dept 02/06/2015). DSS then claimed that she did not return as planned, in fact traveled to Virginia, and wasn't in contact with the couple caring for the child until 3 days after she left. The couple caring for the child called the police when the child's grandmother came to their door demanding the child, prompting DSS involvement. While DSS didn't enter the case until after the mother re-established contact with the couple, it was further alleged at the hearing that the mother "went out 'partying and drinking,'" called the child names, and had handled the child roughly on "at least one occasion." Additionally, DSS had concerns about the mother's mental health and instability. The Fourth Department concluded in "viewing the evidence in the light most favorable to petitioner, the evidence established that the mother left the child with appropriate caregivers, who agreed to care the child for several days" and that "petitioner failed to establish that, as a result of mother's actions, the child was in imminent danger, i.e. 'near or impending [danger], not merely possible' ...." Nicholson v Scoppetta, 3 NY3d 357 (2004).


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Shaken Baby Syndrome: the Debate Rages On. Previously in News Picks (12/23/2014), we reported on the CPL article 440 vacation of Rene Bailey's homicide conviction related to the death of a toddler in her care based on allegations of Shaken Baby Syndrome (SBS). As the Monroe County District Attorney pursues an appeal of that reversal in lieu of immediate retrial, the international debate on the use of SBS as a prosecutorial construct continues.


In a recent (undated) 2015 publication, a group of 34 international professionals in areas spanning forensic medicine, law, pediatrics, biomechanical engineering, social work, and child protection has issued an "Open Letter on Shaken Baby Syndrome and Courts: A False and Flawed Premise.The letter, published online by Argument & Critique, a UK-based interdisciplinary, peer-reviewed, open access, international journal, promotes the need for vigorous adversarial debate in cases where SBS is charged alleging the post-mortem presence of what has come to be known as the "Triad" of symptoms indicating SBS: retinal hemorrhages, subdural hemorrhages, and ischemic encephalopathy. "In short," the drafters state, "we would inform members of the judiciary and legal profession in those countries which utilise the SBS construct, that it does not have the undivided support of the relevant professional community, an essential consideration in the assessment of expert testimony."


The letter has proliferated on the Internet in recent days in blog posts urging the application of the highest scrutiny in these cases to avoid wrongful convictions and has brought a resurgence of attention to a number of noteworthy inquiries into the issues.


The controversial evolution of SBS eerily resembles the path of Roland Summit's Child Sex Abuse Accommodation Syndrome [CSAAS]. Dr. Norman Guthkelch is the physician credited with first identifying SBS in a short paper in the British Medical Journal in 1971. In his practice as a pediatric neurosurgeon, Dr. Guthkelch drew a connection between the common practice of British parents to shake their children as a form of discipline and pediatric patients presenting with brain hemorrhages. He published his findings as a diagnostic and treatment note. Just as Roland Summit subsequently felt compelled in 1992 to question the overuse of his 1983 article on CSAAS as a prosecutorial weapon (Summit, R.C., "Abuse of the Child Sexual Abuse Accommodation Syndrome," 1 J of Child Sexual Abuse 153 [1992]), Dr. Guthkelch expressed concerns in a 2011 interview with NPR about the prolific use of his findings as the primary foundation for the prosecution of parents and caregivers to the exclusion of other more reasonable non-criminal causes of injury. Also in 2011, PBS, NPR, and ProPublica collaborated on a Frontline presentation entitled "The Child Cases" that investigated among others the Texas conviction of Ernie Lopez in connection with the death of an infant in his care. Lopez's conviction was overturned in 2011.


For additional analysis of the issues, DePaul University Law School Professor Deborah Tuerkheimer's 2009 law review article entitled "The Next Innocence Project: Shaken Baby Syndrome and the Criminal Courtsmay be of interest. Professor Tuerkheimer's acclaimed book on the subject, Flawed Convictions: "Shaken Baby Syndrome" and the Inertia of Injustice was published in 2014 and her work is presented in the investigative documentary "The Syndrome,also released in 2014. In light of this growing discord, defenders with clients facing allegations of SBS are urged to seek out expert assistance to help prepare their cases. Please contact the Backup Center for information and assistance.


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New Ethics Publication Now Available. The New York Legal Ethics Reporter (NYLER) "publishes three to five feature articles each month focusing on current issues in the field of ethics and professionalism." The articles are written by NYLER's Editorial Board, which is led by co-editors Ron Minkoff (Chair of the Legal Ethics & Professional Responsibility Group at Frankfurt Kurnit) and Hofstra Law Professor Susan Fortney. The online publication "continues the tradition of the former New York Professional Responsibility Report (NYPRR) - published for more than a decade by our dear friend Lazar Emanuel, who passed away in 2012." Recent articles include "Counseling a Client to Change Her Privacy Settings on Her Social Media Account" and "New York Professional Responsibility Developments Since November 2011: Part 1."


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ABA Adopts 4th Edition of Prosecution and Defense Function Standards. The American Bar Association House of Delegates has adopted a new version of the Criminal Justice Standards for the Prosecution and Defense Functions. They replace the Third Edition, approved in 1991 and published with commentary in 1993. The new blackletter is available here.


Several new provisions have been added, including directives to "strive to eliminate implicit biases, and act to mitigate any improper bias or prejudice when credibly informed that it exists within the scope of [defense counsel's/the prosecutor's] authority." Standards 3-1.6 and 4-1.6, Improper Bias Prohibited.


Standards 3-3.6 [New] and 4-4.7 [formerly 4-4.6, greatly expanded] address disclosure by the defense of potentially incriminating physical evidence. Prosecutors are directed not to offer the fact of delivery for purposes of establishing a defense client's culpability, while courts and legislatures are urged to adopt procedures that would prohibit disclosure in testimony and argument that the defense was the source of the evidence, other than in response to foundational objections or subsequent charges regarding the evidence. Defense counsel will want to read with care the two-and-a-half pages of "should" and "should-nots" directed at them. 


A number of other provisions have been added. They are noted as [New] in the respective tables of contents. Many existing provisions have been expanded as well.


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