2nd honker
Feb. 26, 2016
News Picks from NYSDA Staff
News Picks
Right to Testify in Grand Jury Not Fundamental - Lawyer Who Waived Client's Right Without Consulting Him Was Not Ineffective. In People v Hogan (2016 NY Slip Op 01207 [2/18/2016]), the district attorney transmitted a fax to defense counsel late on a Friday afternoon after counsel had left the office. The fax concerned a grand jury notice scheduled for the following Tuesday, the first business day following a long holiday weekend. Counsel did not read the fax until Tuesday morning, whereupon he immediately called the district attorney's office and, without consulting his client, waived the defendant's right to testify, saying "'he didn't see the benefit to it, only the harm.'" Indicted and later convicted of drug crimes, the defendant sought reversal on the ground that his attorney had provided ineffective assistance of counsel. The Court of Appeals upheld the conviction, holding that the right to testify in the grand jury is not a fundamental one.
While the right to testify before a grand jury is significant and "must be scrupulously protected," "a prospective defendant has no constitutional right to testify before the [g]rand [j]ury." In contrast to the "constitutional nature of the right to testify at trial," the right to testify before the grand jury is a limited statutory right. Whether to exercise that right is a decision that requires "the expert judgment of counsel" because it "involves weighing the possibility of a dismissal, which, in counsel's judgment may be remote, against the potential disadvantages of providing the prosecution with discovery and impeachment material, making damaging admissions, and prematurely narrowing the scope of possible defenses" - quintessential matters of strategy. The various risks and benefits that must be considered render the decision whether to exercise this statutory right "an appropriate one for the lawyer, not the client." [citations omitted]
In any event, the Court noted that even when a defendant is deprived of the opportunity to testify in the grand jury due to attorney error, "a defendant must show prejudice - for example, that if he or she 'had testified in the grand jury, the outcome would have been different' - in order to succeed on an ineffective assistance of counsel claim in this regard." [footnote and citations omitted]
Sentencing Courts Lack Authority to Defer Mandatory Surcharge at Initial Sentencing Proceeding. In People v Jones (2016 NY Slip Op 01208 [2/18/2016]), the Court of Appeals construed various CPL provisions dealing with mandatory surcharges. The Court concluded that sentencing courts lack the authority to defer a mandatory surcharge at the initial sentencing proceeding. Instead, defendants who are sentenced to more than 60 days' imprisonment must move pursuant to CPL 420.10 for resentencing and deferral of the mandatory surcharge. Defendants sentenced to 60 days or less may move for deferral on the return date of a summons issued pursuant to CPL 420.30. The Court made clear that the overall statutory design is intended to limit judicial discretion and to "increase the collection of surcharges from persons during periods of confinement and upon release from incarceration."
Conviction Vacated, YO Granted by Appellate Division After Appeal Waiver Found Invalid. Three members of a Fourth Department panel, while finding the trial court did not abuse its discretion in denying Youthful Offender (YO) status to a 19-year-old with a history of mental illness, reversed the judgment, vacated the conviction, and granted YO status as a matter of discretion in the interest of justice. The defendant's "youth, inexperience, and history of mental illness, along with his statements during the plea proceeding" led the majority in People v Thomas R.O. (2016 NY Slip Op 01086 [4th Dept 2/11/2016]) to find the defendant's waiver of appeal to have been invalid. Two judges dissented, saying that they were "constrained by the valid waiver of the right to appeal."
As to the YO determination, the court said that the only factor weighing against YO treatment was the seriousness of the crimes - second-degree burglary and first-degree robbery. The court noted that "[t]he most significant mitigating circumstance here, defendant's history of mental illness, is detailed in the presentence report (PSR), a memorandum from the Center for Community Alternatives (CCA), and reports prepared by a psychologist and psychiatrist." The judges relied heavily on the content of the CCA memo.
CCA's Counsel and Advisor on Special Projects, Alan Rosenthal, called the opinion "a perfect teaching opportunity," because "[i]n every potential YO case a defendant's presentence memorandum should be mandatory." Without such a memo, judges have little to go on in making YO determinations and, "even more importantly, it is the only way to preserve the record for appellate review as to the mitigating factors to support a YO," Rosenthal said. CCA offers a range of alternative-to-incarceration services for youth and adults, including sentencing mitigation services. 
Large Public Defense Organization Found to Have Conflict in Representing Former Client's Co-Defendant. While knowledge about a former client's case is not automatically imputed to another lawyer in a large public defense program (People v Wilkins [28 NY2d 53 (1971)]), circumstances may arise that create a conflict, the Court of Appeals found on Feb. 11, 2016. When an attorney with a NYC public defense provider who had been representing the defendant on weapons charges for eight months received Rosario material revealing that another attorney in his office had represented a co-defendant on a drug charge arising from the same incident - an individual that the defendant's lawyer had been seeking as a potential defense witness - the trial court did not err in removing the provider from the defendant's case and appointing new counsel before trial. The defendant stated that he wanted to keep his original lawyer but also said he wanted the co-defendant to testify, leaving the court with a dilemma: protect the defendant's right to effective assistance or his right to counsel of choice. Where the attorney's supervisors expressly prohibited the attorney from searching for the former co-defendant, calling him as a witness, or cross-examining him once the prior representation came to light, the trial court's ruling was not an abuse of discretion, the high court said in People v Watson (2016 NY Slip Op 00998 [2/11/2016]).
The current (or original) validity of the distinction made in Wilkins between large public defense offices and law firms, with only the latter being presumed to operate with "a free flow of information" internally so that knowledge by one attorney is imputed to all, was not questioned in Watson. The briefs filed in the Court of Appeals in Watson are available from the Backup Center or through the Court of Appeals' Public Access and Search System (Court-PASS).
Studies Show Cognitive Impairment from Police Taser Shock, Sleep Deprivation. A new groundbreaking study on the effect of electroshock weapons has been released indicating that individuals subject to Taser® shocks "resembled patients with mild cognitive impairment," demonstrated by statistically significant reductions in verbal learning and memory, with effects lasting up to an hour. Certain subjective impairments, similar to effects of trauma, were also evident in some study participants, including difficulty in concentration, heightened anxiety, and feeling overwhelmed. The study, "TASER® Exposure and Cognitive Impairment: Implications for Valid Miranda Waivers and the Timing of Police Custodial Interrogations" (15[1] Criminology & Public Policy 2015), abstract here , was conducted by criminal justice researchers from Drexel University and Arizona State University. It involved a randomized control trial with 142 voluntary participants.
The findings from the study directly implicate Fifth Amendment policies and practices in cases involving police use of Tasers and similar weapons; cognitive impairment is a critical component in determining whether a person has understood Miranda warnings and was able to respond to police interrogation in a competent, coherent, and reliable manner. An overview on the study appeared on the Science Daily website .
Another new study examined the connection between sleep deprivation and false confessions, finding that "sleep deprivation increases the likelihood that a person will falsely confess to wrongdoing that never occurred." The study, "Sleep deprivation and false confessions," (abstract here), appeared in Proceedings of the National Academy of Sciences of the United States of America. The researchers noted that the study's "findings provide an additional justification for the importance of videotaping interrogations" and recommended "that interrogators assess suspects' sleep habits for the days preceding the interrogation and measure suspects' sleepiness by using validated self-report scales ...." A discussion of the study appeared on The Wrongful Convictions Blog on Feb. 10, 2016.
Attorneys who want more information about these studies and false confessions should contact NYSDA's Backup Center.
Association News
NYSDA Launches Newly Designed Website. NYSDA is pleased to announce the launch of our newly designed website, located at the same address: www.nysda.org. Staff have been hard at work to make the website more informative and easy to navigate. The new site uses ReadSpeaker to make the content more accessible with the power of text to speech. Also available is an archive of the News Picks from NYSDA Staff e-newsletters, beginning with the Jan. 14, 2015 edition. Individuals can easily join or renew their NYSDA membership and learn about upcoming training programs. 
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