2nd honker
July 18, 2016
News Picks from NYSDA Staff
News Picks
Proposed Amendments to Ignition Interlock Device Regulations. The New York State Division of Criminal Justice Services, Office of Probation and Correctional Alternatives (OPCA) has proposed amendments to the regulations governing the court-ordered use of ignition interlock devices (IIDs), 9 NYCRR Part 358. A summary of the amendments, as well as the proposed text, are available on the OPCA website . Many of the amendments are designed to reflect recent statutory changes, including the amendments that authorize pre-sentence installation of IIDs and impose IID conditions in youthful offender cases. The amendments would also allow courts to permit drivers with certain medical conditions to use IIDs that require a reduced breath sample, consistent with the National Highway Traffic Safety Administration standards. Other amendments include:
(1) a requirement that, where an operator has missed a service visit and has not had his/her vehicle serviced within three business days immediately following that missed visit, the monitor shall notify the appropriate court and district attorney no later than the close of business on the third business day;
(2) a procedure for handling cases in which an individual is ordered to install an IID in advance of sentencing and resides in a county other than the county of prosecution;
(3) provisions regarding the "Emergency Notification Program," which allows for contemporaneous notification to law enforcement of certain failed or missed re-tests;
(4) deletion of the second sentence of the definition of "service visit," which addressed the act by an operator of sending the data log and breath testing portion of an IID to a qualified manufacturer for data downloading and recalibration; and
(5) new requirements for county Ignition Interlock Program Plans.  
The proposed rule making notice appears in the June 22, 2016 issue of the State Register, beginning on p. 4. Comments on the proposed amendments are due on Aug. 6, 2016. Comments should be submitted to Linda J, Valenti, Assistant Counsel, New York State Division of Criminal Justice Services, Alfred E. Smith Office Building, Room 832, 80 South Swan Street, Albany, NY 12210, (518) 457-8413, email: linda.valenti@dcjs.ny.gov . Those who submit comments are asked to forward a copy to the Backup Center.
Attorneys who represent clients in DWI cases should also be aware of the Department of Motor Vehicles' proposal to increase the impaired driving program (IDP) course fee by $15, from a maximum of $300 to $315. The proposal appears in the July 13, 2016 issue of the State Register, starting at p. 19. According to the rule making notice, the amended regulation requires that IDP providers pay a maximum of $20 of the total program fee to curriculum providers for curriculum enhancements. The current curriculum enhancement rate, which includes the cost of the student workbook, is $5. Comments on the proposal are due on Aug. 27, 2016 and should be sent to David Cadalso, Department of Motor Vehicles, 6 Empire State Plaza, Rm. 522A, Albany, NY 12228; email: heidi.bazicki@dmv.ny.gov . Those who submit comments are asked to forward a copy to the Backup Center.
Issues to Develop at Trial: Use of Prior Bad Acts Against Non-Defendant Witnesses. The July 2016 edition of Issues to Develop at Trial, a publication of the Center for Appellate Litigation (CAL), "discusses the use of prior bad acts against non-defendant witnesses in three contexts: (1) against civilian or police witnesses; (2) to further a defense of third-party culpability; and (3) against the victim when the defendant is asserting a claim of self-defense." Included in the issue are summaries of two recent Court of Appeals decisions, People v Smith  (2016 NY Slip Op 05061 [6/28/2016]) and People v DiPippo (27 NY3d 127 [3/29/2016]).

Past issues of CAL's Issues to Develop at Trial are available at http://appellate-litigation.org/especially-for-trial-practitioners . We thank CAL for sharing these valuable resources with the public defense community.
Updates and Resources for Attorneys Representing Non-Citizen Clients.

Regional Immigration Assistance Centers Open

Regional Immigration Assistance Centers are now available around New York State to provide training and assistance to public defense lawyers representing non-citizen clients in criminal and family court proceedings. The Centers, funded by grants from the New York State Office of Indigent Legal Services , are operating in six regions: Western New York (Region 1); Central New York (Region 2); Northern New York (Region 3); Hudson Valley (Region 4); New York City (Region 5); and Long Island (Region 6). More information about each Center, including who to contact for assistance, is available on NYSDA's website at https://nysda.site-ym.com/page/CrimImmResources . In the coming months, the Centers will be providing regional training programs and technical assistance to public defense providers.
Supreme Court Updates from the Immigrant Defense Project

The Immigrant Defense Project (IDP), the Regional Immigration Assistance Center for Region 5 (New York City), summarized two recent U.S. Supreme Court decisions of interest to public defense attorneys, Mathis v United States  (No. 15--6092 [6/23/2016]) and Voisine v United States (No. 14--10154 [6/27/2016]).
IDP's Litigation Attorney Andrew Wachtenheim wrote:
In the final two weeks of its term, the Supreme Court issued a terrific decision in Mathis v. United States, a federal sentencing case in which the Court affirmed a strict, elements-based categorical approach for determining when a prior conviction will trigger adverse sentencing or immigration consequences. ... The Court's decision makes clear that constitutional and fairness concerns require a strict categorical approach to ensure that immigration consequences and sentencing enhancements are not imposed based on facts that were never necessarily found in an underlying criminal prosecution.
The Supreme Court also issued a decision in Voisine v. United States this term, a criminal law case with potential implications for immigrants facing possible immigration consequences based on reckless offense convictions, or engaged in plea negotiations in ongoing criminal proceedings. In Voisine, the Court examined a federal criminal statute that prohibits individuals previously convicted of misdemeanor crimes of domestic violence from possessing firearms. The Court held that under the language of that particular criminal statute, domestic violence offenses committed with a mens rea of recklessness constitute "misdemeanor crimes of domestic violence."
IDP and the National Immigration Project of the National Lawyers Guild ("NIP-NLG") have issued Practice Alerts about Mathis  and Voisine .
Court of Appeals Narrowly Construes Limit on Sex Offender Civil Commitments Based on Anti-Social Personality Disorder. In 2014, the Court of Appeals held (4 - 3) that anti-social personality disorder (ASPD), standing alone, is not a "mental abnormality" within the meaning of Mental Hygiene Law (MHL) article 10 and cannot form the basis for civil commitment or a strict and intensive supervision and treatment (SIST) order under the Sex Offender Management and Treatment Act. Matter of State of New York v Donald DD. , 24 NY3d 174 (2014). Anti-social personality disorder, the Court held, is not a "'condition, disease or disorder that affects the emotional, cognitive, or volitional capacity of a person in a manner that predisposes him or her to the commission of conduct constituting a sex offense and that results in that person having serious difficulty in controlling such conduct' ...."
In a trio of cases decided two weeks ago, the Court narrowly construed Matter of Donald DD. to allow commitment based on "ASPD plus" diagnoses. Matter of State of New York v Dennis K. , 2016 NY Slip Op 05330 (7/5/2016). In addition to ASPD, the respondent in Dennis K. was diagnosed with paraphilia not otherwise specified (non-consent); the respondent in Anthony N. with ASPD plus borderline personality disorder; and the respondent in Richard TT. with ASPD plus borderline personality disorder and psychopathy. The Court unanimously affirmed the commitment order in Dennis K. based on its previous approval of sex offender civil management based on paraphilia not otherwise specified (although that diagnosis itself may not satisfy the Frye test, an issue yet to be resolved by the Court of Appeals).
By a 6 - 1 margin (Rivera, J. dissenting), the Court also affirmed the commitments in Anthony N. and Richard TT. Acknowledging that borderline personality disorder and psychopathy are not "sexual disorders" that necessarily predispose persons to commit sex offenses, the majority held that MHL article 10 does not require that a "mental abnormality" be a sexual disorder. "Our concern in Donald DD. was that the utilization of ASPD as a predicate for a finding of mental abnormality was insufficient to distinguish a sex offender who has a mental abnormality that subjects him to civil commitment from a typical recidivist." The "ASPD plus" diagnoses in Anthony N. and Richard TT., the majority held, do not raise the same constitutional concerns. The evidence may be sufficient under MHL Article 10 if expert testimony demonstrates that a non-sexual disorder, such as borderline personality disorder or psychopathy, manifests itself in such a way as to predispose the respondent himself "'to the commission of conduct constituting a sex offense and that results in ... serious difficulty in controlling such conduct' ...."
Macy's Enjoined from Collecting Civil Penalties from Suspected Shoplifters in Its Custody. On June 27, 2016, New York County Supreme Court Justice Manuel Mendez granted a preliminary injunction enjoining Macy's Retail Holdings from "demanding, requesting, collecting, receiving, or accepting payments in connection with [General Obligations Law] GOL §11-105 from suspected shoplifters while they are detained under Macy's custody pursuant to [General Business Law] GBL §218 ...." The underlying class action complaint , filed by Cinthia Carolina Reyes Orellana against Macy's, alleges that Macy's has a practice of detaining suspected shoplifters, demanding immediate monetary payments, and coercing them to sign "voluntary" confessions before being released. The complaint raises multiple causes of action, including false imprisonment, abuse of process, assault/battery, and unjust enrichment, and seeks a declaration that New York's civil recovery statute, GOL 11-105 , is unconstitutionally void for vagueness. Section 11-105 provides that individuals are liable for penalties up to five times the retail price of stolen merchandise, not exceeding five hundred dollars. According to the New York Law Journal , in an "oral argument before the judge, [the plaintiff's counsel,] Faruk Usar of Usar Law Group in Queens said Macy's counsel 'acknowledged a longstanding corporate policy of detaining a customer on a single allegation of larceny' and demanding money without benefit of counsel or due process."
In the June 27 decision, Justice Mendez stated:
Here, Macy's treads on a thin line between permissible and impermissible behavior when it implements the power it has been given under the statutes. Defendant has taken the authority granted to it under GBL §218 to detain an individual for shoplifting and has combined that with the authority it is given under GOL §11-105 to collect civil penalties from an individual suspected of shoplifting. These statutes as allegedly applied by defendant are being used as a double edged sword, instead of a shield. A suspected shoplifter is given no opportunity to otherwise object, have a hearing, or receive guidance from counsel before signing a confession to shoplifting, and/or agreeing to pay civil penalties because the civil penalties[] are being demanded at the time the individual is under detention by Macy's.
It appears that Macy's is detaining, investigating, eliciting a confession and recovering civil penalties at the time the suspected shoplifter is in Macy's custody, and then instead of releasing the individual, continuing to detain them and pursue criminal punishment. This is not what is contemplated under [GBL 218] and these actions by Macy's, a private actor, go beyond what the legislature envisioned when it enacted GBL §218 and GOL §11-105.
Based on the evidence presented in Plaintiff's papers, plaintiff alleges, and it appears that Macy's, a private actor acting under color of a state Statute, may be depriving individuals suspected of shoplifting of their rights, privileges and immunities secured by the Constitution and the laws. This sort of behavior may be a violation of due process and should not be condoned.
Justice Mendez refused to enjoin Palmer, Reifler & Associates, a law firm representing Macy's, from collecting civil penalties on Macy's behalf. The court, in a separate decision , granted the motion to dismiss the plaintiff's challenge to the constitutionality of GOL 11-105, but declined to dismiss the remaining causes of action.

National Suit Drive for Men and Women Transitioning into the Workforce. Each year, Men's Wearhouse runs a National Suit Drive to collect gently used professional clothing and accessories that it distributes to local nonprofit organizations to help men and women who are seeking employment. This year's Drive ends on July 31. Donations may be brought to any Men's Wearhouse location .
Association News
Executive Director Gradess Awarded Norman J. Redlich Award for Capital Defense Distinguished Service. On July 14, 2016, NYSDA's Executive Director, Jonathan Gradess, was honored by the Capital Punishment Committee of the New York City Bar Association with the 2016 Norman J. Redlich Award for Capital Defense Distinguished Service. The award is presented to a practitioner in New York who has demonstrated outstanding lifetime commitment to capital defense work, whether as counsel for a capital defendant or as an advocate for the abolition of the death penalty. For decades, Jonathan has been a steadfast advocate for abolition of the death penalty. Jonathan expressed gratitude for receiving an award in Norman Redlich's name whom he went on to speak of in admiration. He also congratulated the new generation of death penalty defense advocates who are necessary to achieving abolition of the death penalty in the United States of America and around the world. Enthusiastically, he said this is a wonderful time to receive this award because "abolition of the death penalty is just on the horizon."
Annual Meeting Starts Sunday. We look forward to seeing you at NYSDA's 49th Annual Meeting & Conference, which starts Sunday, July 24 at the Gideon Putnam Hotel. Any questions about the program? Call us at 518-465-3524.

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