2nd honker
Feb. 5, 2018
News Picks from NYSDA Staff

News Picks
IDP Guide on Defending Against Deportation Based on New York Convictions. The Immigrant Defense Project (IDP) has released a practice guide on how to use an unpublished Second Circuit opinion, Garcia v Sessions , __ F. App'x __, 2018 WL 497201 (2d Cir. 1/22/2018), in immigration cases where the risk of deportation is based on a New York conviction. Among other points, IDP notes that the court affirmed that a fifth-degree criminal sale of a controlled substance conviction is not an aggravated felony for immigration purposes and clarified whether various Penal Law offenses are crimes involving moral turpitude.
Defenders who are representing non-citizen clients are encouraged to contact their Regional Immigration Assistance Center about these and other issues regarding the intersection of immigration law and New York's criminal and family laws. Contact information is available on NYSDA's website at http://www.nysda.org/page/CrimImmResources

Free Webinar on Combatting Human Trafficking. The National Legal Aid and Defender Association and the Human Trafficking Prosecution Unit of the US Department of Justice, Civil Rights Division, are presenting a free webinar, Combatting Human Trafficking Through Collaboration, on Feb. 21, 2018 from 2:00-3:30 EST. According to the announcement, the webinar will address: "types of legal services survivors of human trafficking need; how to identify when civil or criminal clients may be victims of trafficking; successful models for collaborating with law enforcement while maintaining a victim-centered approach; and opportunities for working with the Civil Rights Division to fight against human trafficking." For more information or to register, click here .
The Sept. 19, 2016 edition of News Picks from NYSDA Staff included an item on how public defenders in New York can help clients who may be human trafficking victims access services and other resources.

Monroe County Declines $2.6 Million to Fund Model Parent Representation Office. Despite applying for and winning the grant announced in an NYS Office of Indigent Legal Services (ILS) Request for Proposal (RFP) for creation of a model parental representation office, Monroe County officials have turned down the funds because the RFP called for early entry of counsel for parents accused of neglect or abuse. The County's decision is examined in an article published on Jan. 19, 2018 in the Daily Record. The Democrat & Chronicle also published an article  and editorial about the decision.
The grant would have allowed the Monroe County Public Defender's Office to hire additional attorneys and also retain social work staff to work closely with parents to achieve multidisciplinary, holistic representation for those who have the attention of the local department of social services. This practice is exemplified by the New York City-based Center for Family Representation, Inc. (CFR) and has been implemented by other NYC providers as well as providers of assigned counsel representation in other states.
Richard Wexler, Director of the national Coalition for Child Protection Reform, comments on the Monroe County decision in his blog post here . And the executive director of CFR, Michele Cortese, whose office is the model for this project, has issued a statement here .
Monroe County's decision is very disappointing. The overall impact of accepting this state money and modifying family court practice would be safer, intact families and county taxpayer savings, resulting from reduced spending on unnecessary or ill-suited services, such as foster care and programs that fail to address the problems that low-income families encounter. We hope that if another county has the opportunity to accept this grant, they take advantage of the experience of and data generated by pioneering practitioners to provide the same type of multidisciplinary, holistic representation to parents in family court proceedings that is provided to those in New York City.

New Advisory Committee Opinions on Judicial Ethics Available. The Advisory Committee on Judicial Ethics , which provides ethics advice to judges, justices and quasi-judicial officials, makes its opinions available online, grouped by date of distribution. Recent distributions include several items that may be of interest to public defense lawyers and others.
Among opinions provided the week of Jan. 29, 2018:
  • Opinion 17-179: Digest: "A full-time judge who is the president of an ethnic bar association may participate as the bar association president in a meeting with a DA-elect's transition team on issues involving the law, the legal system, and the administration of justice, subject to certain conditions and limitations." The opinion noted that the topics to be discussed included "increasing diversity at the DA's office" and "reducing certain apparent racial or ethnic disparities in arrests," which "clearly seek to improve the legal system and the administration of justice" and that such initiatives must be collaborative, with representatives of the defense bar and/or other interested stakeholders being invited to participate. (Racial and other forms of bias remain a serious issue in all aspects of the legal profession; as NYSDA most recently noted in the Nov.-Dec. 2017 issue of the Backup Center REPORT, below, "Diversity, Inclusion and Elimination of Bias" now constitute a category of mandated continuing legal education.)
  • Opinion 17-123: Digest: "A judge who presides in veterans treatment court may write to legislators asking for names of potential peer mentors to work with veteran-defendants in the program, provided the judge avoids both actual coercion and its appearance when requesting participation. Alternatively, the judge may authorize his/her resource coordinator or mentor coordinator to write such a letter."
Among opinions provided the week of Jan. 15, 2018:
  • Opinion 17-150: This opinion addresses two issues: a) when a "new full-time judge who previously represented clients as a non-supervisory conflict defender and as a private attorney" is or may be disqualified due to the prior position; and b) when a "judge whose second-degree relative serves as a non-supervisory assistant public defender" is or may be disqualified due to the relative's position.
  • Opinion 17-162: Digest: "A judge who was the District Attorney when a defendant was convicted may not preside in a subsequent application to seal the criminal conviction pursuant to Criminal Procedure Law § 160.59." (Information on that sealing law, which went into effect last October, appeared in News Picks on 9/26/2017 and 9/29/2017.)
  • Opinion 17-169/17-170: This opinion addresses: a) when a "full-time County/Family Court judge who previously was a practicing attorney in the same county" is or may be disqualified; and b) when that judge is or may be disqualified due to having "previously headed the Public Defender's office ...." As to the latter situation, "the judge is permanently disqualified, without the possibility of remittal, from cases that were pending in that office during the judge's tenure as the Public Defender, regardless of whether the judge had actual knowledge of involvement in a particular matter ...."
Association News
New Issue of NYSDA's Backup Center REPORT Available Now. The Nov.-Dec. 2017 issue of the Public Defense Backup Center REPORT is now available on NYSDA's website. This issue of the REPORT contains information on: raise the age, the statewide implementation of Hurrell-Harring, the increase in expert hourly fees, and other systemic changes occurring in 2018. NYSDA members will receive a hard copy in the upcoming weeks. If you have any questions, please contact the Backup Center at 518-465-3524.

NYSDA Presents Testimony at Budget Hearing. Seeking legislative support for a budget equal to that of last year for NYSDA's Public Defense Backup Center and other public defense funding, and for the increased funding flowing to and through the NYS Indigent Legal Services Office, NYSDA submitted written testimony at the Public Protection Budget hearing on Jan. 30, 2018. The testimony also supported criminal justice reforms while urging caution about some proposals that would not help and would likely harm public defense clients. Deputy Director Susan Bryant appeared on behalf of Executive Director Charlie O'Brien. The written testimony is available on NYSDA's home page .

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