2nd honker
Jan. 29, 2016
News Picks from NYSDA Staff
News Picks
DOCCS May Not Hold Level 3 Sex Offenders Beyond Maximum Expiration Date in Non-RTF Facilities. Penal Law 70.45(3) authorizes the Board of Parole to impose a post-release supervision condition requiring a person to spend up to six months in a residential treatment program (RTF) "immediately following release from the underlying term of imprisonment ...." RTF programs can be located on the grounds of designated prisons. In People ex rel. Green v Superintendent of Sullivan Correctional Facility (2016 NY Slip Op 00417 [3rd Dept 1/21/2016]), the petitioner had completed a three-year determinate sentence for a sex offense and was designated a Level III offender. However, he continued to be held in a non-RTF maximum security prison following completion of the sentence. He sought habeas corpus relief and the Department of Corrections and Community Supervision (DOCCS) argued it was authorized to retain him in a non-RTF facility pending a decision on the State's application to subject the petitioner to court-ordered outpatient mental health treatment under Kendra's Law.
The supreme court dismissed the writ and the Appellate Division, Third Department reversed. "Under the circumstances presented, we find that when a risk level III sex offender reaches his or her maximum expiration date, DOCCS must release the individual to either an approved residence or to an RTF. Where an individual needs mental health treatment not otherwise available at an RTF, DOCCS must, prior to the release date, seek a court order authorizing continued hospitalization pursuant to Mental Hygiene Law article 9 or admission to a secure detention facility pursuant to Mental Hygiene Law article 10 ...." The Third Department recognized "that the dilemma presented is no doubt a consequence of the difficulty in finding acceptable housing for sex offenders" and noted that "DOCCS remains statutorily obligated to assist" sex offenders in locating suitable housing in the community.
Bronx Judge Finds Not All OCME Analysts Who Handled DNA Samples Must Testify. A trial court, granting in part and denying in part a defense motion to preclude admission of a DNA report without calling each of the criminalists who helped prepare it, noted that the motion raised a new issue in New York under a 2012 U.S. Supreme Court case. People v M.F., 2016 NY Slip Op 26012 (Supreme Ct, Bronx Co 1/20/2016). The U.S. Supreme Court case at issue is Williams v Illinois (132 SCt 2221 [2012]), one of the many decisions parsing the landmark confrontation case Crawford v Washington (541 US 36 [2004]).
In M.F., the prosecution made an offer of proof as to the DNA report and announced the intention to call as a fact and expert witness the supervising analyst who reviewed the data and drew the conclusion that the evidence sample matched the defendant's DNA. The Bronx judge rejected - subject to renewal if testing or a particular analyst's work was called into question by cross-examination - the defense position that every individual conducting a task with regard to the report's preparation must testify.
The court did find that particular scrutiny of the initial steps in the analysis was required. The first analyst to handle the specimens in the rape kit chose to put only the cervical swab through testing, a decision that the defense successfully argued was not just an "application of a formula," but included "'assertive conduct' ...." That, plus the fact that the sole evidence linking the defendant to the charged rape was the DNA match, led the court to find that the initial analyst's work is testimonial, requiring the prosecution to call the initial analyst to testify and permit her to be cross-examined. The court also said that, though of lesser importance, the initial analyst's availability to testify was a consideration.
Bill Closes Gaps Regarding Duties and Responsibilities of Non-Respondent Parents. Signed by Governor Cuomo on Dec. 21, 2015 and effective June 18, 2016, A6715-A (L 2015, ch 567) purports to clarify what treatment a non-respondent parent should expect in a Family Court Act (FCA) article 10 (abuse or neglect) case. Recommended by the Family Court Advisory and Rules Committee, the bill adds definitions of "parent," "relative," and "suitable person" to FCA 1012 and recognizes parents' superior rights to the care and custody of their children. According to the sponsor's memo, FCA 1017 will include a requirement that "certain additional individuals should be identified, located and notified in writing of the pendency of child protective proceedings ...." The bill adds provisions authorizing the assignment of counsel for non-respondent parents at pre-petition hearings and requiring that, upon the filing of a petition, non-respondent parents receive a notice advising them of the right to counsel.
Under the bill, the family court is authorized to temporarily release a child to a non-respondent parent, relative, or other suitable person for up to one year, which can be extended for another year on a good cause showing. Before releasing a child, the family court still must review "the orders of protection and sex offender registries, as well as child protective petitions and Family Court warrants regarding" such person. When the court temporarily releases a child to a non-respondent parent, relative, or other suitable person, that person must "submit[] to the jurisdiction of the court with respect to the child" and may be directed to "cooperate in making the child available for court-ordered visitation" and appointments. Finally, the bill establishes a procedure for cases in which an article 6 action is brought in response to allegations of abuse or neglect.
Second Department Clarifies Family Court Authority for Extending Order of Protection. In Matter of Molloy v Molloy (2016 NY Slip Op 00366 [2nd Dept 1/20/2016]), the Second Department held that the family court erred by denying the petitioner's request, pursuant to Family Court Act (FCA) 842, to extend a family court order of protection for five years. The family court had denied the request, "holding that because the petitioner had already been granted a two-year order of protection in Criminal Court, the goal behind [FCA] 842 was accomplished and, thus, the petitioner had not demonstrated good cause to extend the order of protection." The Second Department concluded that the "Criminal Court's issuance of an order of protection did not negate or otherwise render superfluous the petitioner's request for an extension of her Family Court order of protection."
Because there is no definition for "good cause" in FCA 842, the appellate court analyzed its legislative history, including the Assembly Memo in Support of the latest modification of that section, and determined that the purpose of the modification was to allow a broader approach to extension requests. "[P]etitioners might 'apply for extensions for various reasons to ensure their safety' ...." And courts must view an extension request "'in the context of the facts of the case, including present circumstances, past abuse by the respondent, threats of abuse by the respondent and relevant information concerning the safety and protection of the protected persons with the primary goal to prevent a recurrence of abuse'...." Because the family court may be familiar with the parties and must review many factors when determining if a protective order will be extended, it "is in the best position to make this fact-specific determination." While it may be necessary to hold an evidentiary hearing, FCA 842 does not mandate a hearing. The Second Department found that the petitioner's application was sufficient to consider her request and, upon review of the record, found good cause to grant the extension.
Applications Open for 2016 Racial Justice Training Institute. Racism remains a huge part of poverty in our country, and the Sargent Shriver National Center on Poverty Law is offering advocates up-to-date racial justice tools. The 2016 Racial Justice Training Institute will cover a wide range of best practices over the course of six months (May-November), through online meetings and in-person training in Chicago June 21-24. Only team applications will be accepted, which provides an opportunity for organizational collaborations - "teams must include but need not be limited to legal aid or other public interest lawyers serving low-income people or communities of color." Information about the Institute and how to apply can be found here. Space is limited; the application deadline is Feb. 29, 2016. There is no application fee, but registration is $625. 

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