2nd honker
Jan. 12, 2017
News Picks from NYSDA Staff
News Picks
Governor Cuomo Vetoes Justice Equality Act. On Dec. 31, 2016, Governor Cuomo vetoed the Justice Equality Act (S.8114/A.10706). In his veto message, the Governor cited cost as the main factor for the veto, but acknowledged that "[t]he need for reform in the area of 'indigent defense' is clear" and stated that his administration will develop a plan to extend the reforms in the five counties covered under the Hurrell-Harring settlement to the other counties. As noted in the Nov. 30, 2016 issue of News Picks, over 200 state and local leaders, groups, and editorial boards expressed support for the legislation that would have overhauled New York's county-based public defense system by providing state funding and oversight. In the days since the veto, many of these groups have publicly denounced the Governor's action. For example, the New York Civil Liberties Union, which brought the Hurrell-Harring suit, issued a press release expressing deep disappointment in the veto. The Justice Equality news release is available here and a collection of articles released as of Jan. 9, 2017 is available here .
In the 12th Proposal of the 2017 State of the State Agenda , released Jan. 9, 2017, Governor Cuomo included his plan to extend Hurrell-Harring reforms to the entire state as part of the "New York Promise" Agenda. Specifically, Cuomo introduced "a plan for the state to fund one hundred percent of the costs necessary to extend the reforms provided in the Hurrell-Harring settlement to all the state's counties and the City of New York, with appropriate fiscal oversight through the Division of Budget." Such oversight is being decried as a violation of the basic principle that public defense must be independent . Other criminal justice system issues addressed in the Agenda include bail and pretrial detention, speedy trial, raising the age of criminal responsibility, witness identification procedures, and recording of police interrogations in certain cases. Legislation to implement these changes is expected to appear in the Executive Budget, which will be released next week. The Justice Equality coalition and others are preparing responses to these proposals.

Defense Suppression Wins in Second Department and Westchester County. When it feels like raising search issues may be a fruitless enterprise, attorneys may take heart from the decisions below.
Silent Alarm and Individual's Nervousness Not Sufficient Grounds for Warrantless Home Search, Appellate Court Says. The Second Department recently ruled that weapons, explosives, marijuana, forged currency, and other contraband found as a result of a warrantless entry into a home should have been suppressed. People v Ringel , 2016 NY Slip Op 08887 (2nd Dept 12/28/2016). The appellate court said in Ringel that circumstances known to police after they responded in early afternoon to a "silent alarm" provided no grounds for an emergency entry. Such alarms, in police experience, were often false, and there was no sign of a break-in. The defendant, who was openly working on a van in the driveway, had a key to the home, which he said belonged to his parents, and "gave the police his phone so his sister could corroborate what he said." These circumstances did not support "an objectively reasonable belief" that an emergency existed requiring immediate police assistance inside the home to protect life or property, the appellate decision said. Any concerns raised by the defendant's nervousness as to the safety of potential occupants of the home could have been further investigated without entry; the sister said by phone she would be there in a few minutes and a car running in a neighboring driveway indicated that there were others around who could be asked about the defendant's parents.
County Court Suppresses Gun, Ammo, and Statements Taken from a Defendant with Sagging Pocket. In an October case, a police officer was found justified in approaching a defendant in a "high crime area" who, police said, grabbed his rear pocket, which "appeared to 'sag a little,'" quickened his pace away from the police car, and crouched behind a parked vehicle with his hand on the pocket that seemed to have something metallic in it. However, the Westchester County Court said, the officer was not justified in grabbing the defendant and halting his ability to keep walking away after the officer shouted, "Police. Stop' ...." The court noted that the officer had not "acted in a manner designed to protect himself" and the other officer with him; the officer did not draw his gun, did not tell the other officer that he suspected the presence of a weapon, looked away from the defendant to check proffered identification, and reached behind the defendant's back to put the defendant's wallet back in the other rear pocket. Only at that point, as the defendant turned away from the officer a few times, did the officer observe the barrel of a gun. The gun, ammunition subsequently discovered in the defendant's coat, and the defendant's statements, were suppressed. People v Pabellon , 2016 NY Slip Op 51570(U) (County Ct, Westchester Co 10/19/2016).

Fourth Department Now Live Broadcasting Oral Arguments. As of Monday, Jan. 9, 2017, arguments at the Appellate Division, Fourth Department are available to watch via a live feed. Viewers can access the live feed by visiting https://ad4.nycourts.gov/go/live/ or by going to the Fourth Department's homepage and clicking on the Watch Live link. On the live feed page, there are two primary links for each of the two courtrooms: the Today's Argument Calendar link goes to a pdf copy of the docket, and the YouTube icon links to the courtroom camera. Dual frames offer views of bench and counsel, expandable to full screen. The site notes that the Court "may suspend a broadcast to protect the privacy interests of individuals in matters before the Court." An archive of arguments will be available and videos will be posted within three business days, with the following caveat: "To protect the privacy of certain parties to a matter before the court, the Court may not make the associated video archive available."

Free Webinar on New Child Support Regulations this Friday, January 13. As noted in the Dec. 29, 2016 issue of News Picks, the Administration for Children and Families, U.S. Department of Health and Human Services (HHS) announced new regulations that impact child support enforcement programs in states across the country. On Friday, January 13, the National Legal Aid & Defender Association is offering a free webinar on the goals and applications of the new regulations that will feature Vicki Turetsky, Commissioner of the Office of Child Support Enforcement at HHS, and practitioners from the civil legal aid and public defense communities. The new regulations are "[d]esigned to allow for more realistic and regular payments to the custodial parent or guardian, while also avoiding the accrual of huge arrearages by noncustodial parents ...." Child support agencies are now required to consider a low-income parent's unique circumstances, and incarceration must be considered as a substantial change in circumstances. Click here to learn more and register .

ABA Parent Attorney Conference Early Bird Registration Now Open.  Registration is now open for the 5th National Parent Attorney Conference: Valuing Dignity & Respect for All Families, scheduled April 25 and 26, in McLean, VA. The conference, which is organized and sponsored by the American Bar Association Center on Children and the Law every other year, features presentations from skilled practitioners from around the country. The main program for this year's conference includes a wide array of topics and many of our own New York providers as speakers. Two "preconferences" will focus on specific areas of practice: the Indian Child Welfare Act (scheduled for April 24) and Immigration (April 26). You could save $40 by registering by Feb. 1, 2017.

Addendum to PCAST Forensic Science Report Issued, Stresses Need for Empirical Studies. The President's Council of Advisors on Science and Technology (PCAST) has issued an Addendum to its September 2016 report , "Forensic Science in Criminal Courts: Ensuring Scientific Validity of Feature-Comparison Methods." The Sept. 19 and 30, 2016 issues of News Picks include items about the report. Video of the Jan. 6, 2017 PCAST discussion on the Addendum is available here .
The Addendum addresses issues raised in written responses to the report, focusing on three key issues: "Are empirical studies truly necessary?"; "Importance of other kinds of studies"; and "Completeness of PCAST's evaluation." Regarding empirical studies, the Addendum concludes: "There is no justification for accepting that a method is valid and reliable in the absence of appropriate empirical evidence." The Addendum also includes a discussion of DNA analysis of complex mixtures, focusing on probabilistic genotyping (PG), "which uses mathematical models (involving a likelihood-ratio approach) and simulations to attempt to infer the likelihood that a given individual's DNA is present in the sample." PCAST concluded:
The path forward is straightforward. The validity of specific PG software should be validated by testing a diverse collection of samples within well-defined ranges. The DNA analysis field contains excellent scientists who are capable of defining, executing, and analyzing such empirical studies.
When considering the admissibility of testimony about complex mixtures (or complex samples), judges should ascertain whether the published validation studies adequately address the nature of the sample being analyzed (e.g., DNA quantity and quality, number of contributors, and mixture proportion for the person of interest).

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