2nd honker
Feb. 27, 2015
News Picks from NYSDA Staff

News Picks


Local Sex Offender Residency Laws Preempted By State Law. The Court of Appeals has held state law occupies the field of sex offender management so as to preempt local governments from enacting sex offender residency laws. Over 100 local laws restricting housing options for registered sex offenders were effectively invalidated by the court's February 17th decision in People v Diack (2015 NY Slip Op 01376 [2/17/2015]). Michael Diack was designated a level one sex offender and he completed parole supervision in 2004. In 2008, he was charged with violating a Nassau County ordinance prohibiting all registered sex offenders from residing with 1000 feet of a school. The District Court dismissed the charge, holding that the county ordinance was preempted by state law, which placed no restrictions on Diack's residency. But the Appellate Term reversed and reinstated the charge. 


Writing for a unanimous 5-member court, Judge Pigott concluded that the "State's comprehensive and detailed statutory and regulatory framework for the identification, regulation and monitoring of registered sex offenders prohibits the enactment" of local sex offender residency laws. The court found abundant support for "field preemption" in the detailed provisions of the Sex Offender Registration Act, the Sexual Assault Reform Act, the Sex Offender Management and Treatment Act, and 2008 legislation authorizing state agencies to issue regulations governing housing options for level 2 and 3 probationers and parolees and other homeless sex offenders in need of emergency shelter (L 2008, ch 568). "Residency restriction laws such as [Nassau's] Local Law 4," Judge Pigott wrote, "encroach upon the State's occupation of the field, 'inhibit the operation of [this] State's general law and thereby thwart the operation of [this] State's overriding policy concerns' relative to the identification, monitoring and treatment of sex offenders ...." Albany attorney Kathy Manley, recipient of NYSDA's 2013 Service of Justice Award for her work on this important issue, represented Diack.


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Court of Appeals Holds Expiration Does Not Moot an Appeal from an Order of Protection. In Matter of Veronica P. v Radcliff A. (2015 Slip Op 01300 [2/12/2015]), the Family Court issued a two year order of protection after a contested hearing in a Family Court Act article 8 (Family Offense) matter. The court concluded that the respondent was guilty of committing acts that constituted second-degree harassment. The respondent appealed and the First Department unanimously dismissed the appeal based exclusively on the expiration of the order. The Court of Appeals reversed indicating that the "ability of an appellate decision to directly and immediately impact the parties' rights and interests is among the most important aspects of the mootness analysis" and "because the order still imposes significant enduring consequences upon respondent," the issue is not moot. The Court gave examples of "enduring consequences," including the possibility that in a future criminal or family court case, the court may "rely on the order to enhance a sentence or adverse civil adjudication against respondent" or that the respondent may have to disclose to a future employer the fact that an order had been entered against him. The Court, however, declined to declare that all appeals from expired orders of protection, other than those entered by stipulation, are not moot.


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More Grant Money Awarded to Support Tax and Public Benefit Fraud Prosecutions. In a Feb.19 press release, Governor Cuomo announced that $14.7 million in grant money has been awarded to 28 district attorneys' offices to target tax and public benefits fraud. "The grants will fund personnel, including forensic accountants, investigators and assistant district attorneys, who work to build cases for prosecution." These funds are in addition to the $860,700 in Crimes Against Revenue Program (CARP) funds awarded to district attorneys' offices six months ago, as reported in the Aug. 28, 2014 issue of News Picks. 


Of the 28 offices receiving state grant funds, five counties will be receive funding for the first time: Chemung, Cortland, Fulton, Ontario, and Washington. The remaining 23 counties (Albany, Bronx, Cayuga, Clinton, Erie, Kings, Madison, Monroe, Nassau, New York, Niagara, Oneida, Onondaga, Queens, Richmond, Rockland, Schenectady, Steuben, Suffolk, Ulster, Warren, and Westchester) already participate in the program and will receive additional funding to continue and expand their CARP investigations and prosecutions. Again, despite the anticipated increase in criminal prosecutions as a result of CARP funding, the State has not provided any funds for public defense services.


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Third Department Excoriates DA Czajka's Apparent Use of Altered Court Documents. An appeal of a CPLR article 78 proceeding brought to address procedures and law regarding availability to the District Attorney of recordings and/or transcripts of town court proceedings took an unusual turn in the Third Department recently. The appellate court had to address not only procedural questions such as the service required to obtain personal jurisdiction but also a unique and startling question. That question was whether sanctions, costs, and counsel fees should be imposed upon the Columbia County District Attorney for, among other things, altering an "order to show cause after it had been signed and filed, altering the petition after it had been verified and notarized, and holding the altered documents out thereafter to two Supreme Court Justices and the parties with the apparent intent of misleading them into believing that the amendments were authorized ...." The court remanded for a hearing as to the challenged conduct and surrounding circumstances. Matter of Czajka v Dellehunt, 2015 NY Slip Op 01514 (3rd Dept 2/19/2015). The opinion by Justice Elizabeth A. Garry did not mince words about the seriousness of the altered document issue, noting, "It certainly bears significant consideration that, as an elected District Attorney, petitioner's apparent involvement here may be deemed to constitute a substantial violation of the Rules of Professional Conduct ...."


Articles about the decision appeared in the Times Union and Register-Star. Like the decision itself, they reveal longstanding strife between District Attorney Paul Czajka and David A. Dellehunt, who serves as a Town Justice and a Village Justice. Because the Third Department upheld the dismissal of the underlying proceedings based on a lack of personal jurisdiction, the availability of local court recordings and transcripts was not resolved.


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News Series Sheds New Light on Bite Mark Analysis as Junk Science. The Washington Post recently published a four-part series by Radley Balko about the junk science of bite mark analysis; part one of the series was published on Feb. 13. The series details the history of bite mark analysis (see part two); exonerations where the conviction was based on erroneous bite mark comparisons; and the impact of the National Academy of Sciences' 2009 report, "Strengthening Forensic Science in the United States: A Path Forward" and a study of bite mark analysis by researchers at the University at Buffalo's Laboratory for Forensic Odontology Research in the School of Dental Medicine.


The NAS report was critical of the field of bite mark comparisons, noting that it has "never been exposed to stringent scientific scrutiny," but that courts have accepted such evidence "without any meaningful scientific validation, determination of error rates, or reliability testing to explain the limits of the discipline." And the University at Buffalo study, discussed in part three of the series, "found no scientific basis for the premise that human dentition is unique ... [and] no support for the premise that human skin is capable of recording and preserving bite marks in a useful way." Many outside the community of bite mark analysts have praised the research done by Mary and Peter Bush for the University at Buffalo study, but bite mark analysts have responded with what Balko describes as "a nasty campaign to undermine the Bushes' credibility." Others who have testified against bite mark analysts or expressed concern regarding bite mark comparisons have faced similar attacks.


Although several people convicted based on bite mark evidence have been exonerated after DNA testing, challenges to bite mark analysis since the NAS report was released in 2009 have failed. As noted in part four of the series, in all but one case, courts have denied challenges without a hearing. In 2013, Manhattan Supreme Court Judge Maxwell Wiley granted the defendant, Clarence Dean, a Frye hearing on his motion to exclude the bite mark evidence in his case. Post-Frye hearing briefs were filed, including an amicus brief from the Innocence Project and a reply brief from the prosecution. The court ultimately denied the defendant's motion to preclude, but the judge never issued a written opinion explaining that decision. Dean's case is still pending at this time. We will continue to monitor challenges to bite mark comparisons and other forensic evidence, and attorneys with questions about these challenges may contact the Backup Center for more information and resources.


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Misplaced Confidence That Crisis Events Are Seared into the Brain. A recent New Yorker article by psychology writer Maria Konnikova describes studies on memory that produce seemingly inconsistent results. Memory for events seems to be strengthened if they are strongly emotional occurrences. But recollections of the details surrounding shocking events often seem to be wrong. In "You Have No Idea What Happened," Konnikova offers the explanation of researcher Elizabeth Phelps that people experience a sort of tunnel vision at shocking moments - memory of the central event is enhanced, but the mind discards details that seem only incidental. As an adaptive mechanism, this is helpful - confidently remembering a dog bite incident enables you to run away from possible danger in a future similar encounter without hesitation. But details that the mind does not perceive as important to the central lesson are blocked. So when details matter, as they often do in court cases, Phelps says that what someone will or won't remember cannot be predicted. "The best we can do, she says, is to err on the side of caution: unless we are talking about the most central part of the recollection, assume that our confidence is misplaced."


Unsurprisingly, the portion of the article that discusses legal evidence focuses on eyewitness identification. Certainly "EyeID" has been the subject of much research, legal debate, and training. (For example, see page 4 of the August-November 2014 issue of the Backup Center REPORT.) But factfinders must sometimes determine the accuracy of witnesses' description of other aspects of an incident, not just a person's identity. What happened immediately after the critical moment? What happened to physical evidence at the scene? When such details matter and witness recollection does not support the defense theory, this new article may provide ideas on ways to educate the factfinder, or at least to prevent the factfinder from being misled. Of course, experts may be of assistance in evaluating and addressing a particular situation. And one tactic some lawyers have suggested is filing motions in limine to preclude misleading prosecution remarks in summation related to factors affecting eyewitness evidence.


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Association News


Upcoming NYSDA Training Programs. NYSDA will be presenting several training programs in March for attorneys and investigators. We hope to see you at one or more of these upcoming trainers.


March 14, 2015

29th Annual Metropolitan New York Trainer

This program will be held at the Tishman Auditorium at NYU Law School (40 Washington Square South). Registration deadline: Friday, March 8. 


March 27, 2015

Advanced Skills Defense Investigator Training

The program will be held at the Hilton Albany (40 Lodge Street, Albany). This program is limited to investigators handling public defense cases. Registration deadline: Monday, March 23. For additional information, contact Yasmin Davis at (518) 465-3524 or ydavis@nysda.org. This training was made possible in part by a grant from The New York Bar Foundation.


March 28, 2015

Family Law Update for Parent Attorneys

Presented by Monroe County Public Defender's Office and NYSDA, the program will be held at the Central Library of Rochester and Monroe County (115 South Avenue, Rochester). For registration information, contact the Backup Center.


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NYSDA is Now on Facebook. In addition to providing Association and public defense news through News Picks, the Public Defense Backup Center REPORT, and Twitter (@NYSDefenders), NYSDA now has a Facebook page (New York State Defenders Association - NYSDA). Like NYSDA's page today!


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