2nd honker
July 29, 2016
News Picks from NYSDA Staff
News Picks

Medication-Assisted Treatment for Opioid Addiction. This week's Annual Conference included a session on asserting clients' rights to medication-assisted treatment for opioid addiction, which was presented by Sally Friedman and Melissa Trent of the Legal Action Center (LAC). The LAC website includes a resource page for defense attorneys working with clients who have an opioid addiction. Of note are the new LAC report, "Medication-Assisted Treatment in Drug Courts: Recommended Strategies," a guide for defense attorneys, and a handout on the myths and facts of medication-assisted treatment. While the presentation focused on criminal defense, Family Court practitioners may also find these LAC materials helpful, especially as to article 10 proceedings. Both presenters are available to assist attorneys with medication-assisted treatment issues. They can be reached by phone at 212-243-1313 or by email at mtrent@lac.org (Melissa Trent) or sfriedman@lac.org (Sally Friedman).

Update on Criminal Cases Pending in the Court of Appeals. The Center for Appellate Litigation (CAL) has released its July 2016 Court of Appeals Update . The Update includes information about significant criminal cases pending in the Court of Appeals, the issues presented in each case, and the name(s) of defense counsel. As CAL's Attorney-in-Charge, Bob Dean, noted in an email communication about this Update, there are three significant statutory speedy trial cases that will be argued before the Court on September 6 and two others are awaiting scheduling; there are three cases awaiting scheduling that question the continued validity of the discretionary persistent felony statute in light of recent U.S. Supreme Court decisions; and neither of the two newest Court of Appeals judges appears as a leave granter in the Update.
New Database Allows Search for Persons in DOCCS by Facility, Crime . Syracuse.com is now offering a database of New York State Department of Corrections and Community Supervision (DOCCS) inmate records that allows individuals to search for persons in DOCCS custody by facility or crime. The DOCCS inmate search only allows users to search by an individual's name, DIN (Department ID Number), or NYSID (New York State ID Number). According to the article accompanying the database, the data was obtained under the Freedom of Information Law. As a result, the database contains information as of the date it was provided to Syracuse.com and is not regularly updated, as the DOCCS inmate search database is. Unfortunately, this also means that information that is removed from the DOCCS inmate search , whether because a conviction is reversed or pursuant to Correction Law 9 ("Access to inmate information via the internet") will remain accessible to the public through the Syracuse.com database.
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Second Circuit Offers Meta-Analysis of 4th Amendment Protections When Arrests Occur at a Third Party's Home. In May 2016, in an interlocutory appeal, the Second Circuit Court of Appeals vacated an order of the U.S. District Court, District of Connecticut, that suppressed evidence based on an alleged Fourth Amendment violation involving the seizure of evidence obtained in the course of an arrest of the accused on an arrest warrant executed at the residence of a third party. The unfavorable result in United States v Bohannon (No. 14-4679-cr, 2016 US App LEXIS 9789 [2nd Cir 5/31/2016]), does not make the decision only marginally useful. Rather, the meta-analysis undertaken by the Second Circuit in its review of relevant precedents across multiple jurisdictions makes the decision a valuable research tool for defenders preparing Fourth Amendment challenges in cases involving third-party premises.
In Bohannon, the police had come to a third-party residence to execute an arrest warrant against the accused, a guest there. At the time, they had neither an arrest warrant for the legal resident nor a search warrant for the premises. A search conducted incident to the arrest of the accused revealed drugs, cash, and firearms. The defense challenged the search and seizure on two grounds: absent a search warrant for the premises the seizure of the evidence was unauthorized, citing Steagald v United States (451 US 204); and based on Payton v New York (445 US 573), there was no reasonable basis for executing at the third party's home the arrest warrant that they had for the accused. The District Court rejected the Steagald argument, but upheld the Payton argument and suppressed the evidence.
The Second Circuit held that neither Supreme Court case required suppression of the evidence under the circumstances presented: Payton because the arrest warrant was valid and the police had sufficient "reason to believe" the accused was present at the third-party premises, and Steagald because the Fourth Amendment interests of the actual primary resident of the location where the accused was arrested were not implicated. The matter was remanded for the District Court to address whether there were any constitutional violations related to the scope of the search incident to arrest.
The analytical steps taken in reaching these seemingly straightforward conclusions were especially instructive relative to the multi-layered reflection of the facts and circumstances necessary to engage in effective Fourth Amendment litigation.
Expert Testimony is Vital In Shaken Baby Syndrome (Abusive Head Trauma) Cases and Others . The Supreme Judicial Court of Massachusetts, on July 14, 2016, reversed a conviction for assault and battery on a child causing substantial bodily injury on the grounds of ineffective assistance of counsel. The opinion in Commonwealth v Epps states that "in the unusual circumstances of this case, the absence of expert testimony that the child's injuries might have been caused by her accidental falls deprived the defendant of an available, substantial ground of defense, and thereby created a substantial risk of a miscarriage of justice." The opinion discussed counsel's failure to find a credible expert in 2007, the year of the trial, but rested its decision on newly discovered evidence - research casting doubt on the symptoms previously believed indicative of so-called shaken-baby syndrome (SBS) - and on the touchstone of doing justice.
Epps cited a case from the month before, Commonwealth v Millien (474 Mass 417), which involved similar charges and also resulted in reversal due to a lack of expert testimony about "the other side" of the "heated debate in the medical community" on the question of whether shaking a child can result in the traumatic brain injury. In Millien, the client's father had retained counsel for his son, who lacked the funds to hire a lawyer, but the father refused to pay for an SBS expert. In that situation, the court said, "it was manifestly unreasonable for defense counsel not to apply to the judge for the funds needed to retain an expert witness." The Millien court cited Hinton v Alabama (134 SCt 1081 [2/24/2014]), a case involving an attorney's failure to seek funds for an adequate expert in bullet comparison.
In New York just a few months ago, the Court of Appeals held in a memorandum decision that denial of a hearing on a defendant's CPL 440.10 motion for new trial was error where the defendant's proffer raised sufficient questions as to whether counsel had an adequate explanation for failing to call an expert or pursue certain lines of cross-examination on SBS. People v Caldavado, 26 NY3d 1034 (2015) .
Standards promulgated by the Indigent Legal Services Office (ILS) include directives regarding consultation with and use of experts. The standards for representation at the trial level direct counties to ensure that public defense attorneys "have access to and use as needed the assistance of experts in a variety of fields including mental health, medicine, science, forensics, social work, sentencing advocacy, interpretation/translation, and others." Likewise, the ILS standards for representation of parents in Family Court say that attorneys must "[i]dentify, secure, prepare, and qualify any expert witness" as well as prepare to cross-examine experts for the opposition. These standards rest on decades of experience and standards nationwide. For assistance with expert witness issues, attorneys can contact the Backup Center.

Association News

New Issue of NYSDA's Backup Center REPORT. The latest issue of the Public Defense Backup Center REPORT ( May-July 2016) is now available on NYSDA's website; the print version will be mailed out shortly.
Highlights of NYSDA Conference: Awards and Discussion of Statewide Reform. In addition to the CLE presentation noted above and many others, this year's Annual Conference provided opportunities for public defense lawyers to discuss a range of issues affecting their work. Reform efforts - specifically the legislation requiring the State to phase in reimbursement to counties for their public defense costs reported in the June 30 issue of News Picks - were on the agenda at the Chief Defender Convening on Sunday, July 24 and were the subject of informal conversations at breaks and lunches throughout the conference. The reform legislation was also a focus at the Awards Banquet, where NYSDA's Service of Justice award was presented to three people for their work to pass the bill: Senator John DeFrancisco; Assemblymember Patricia Fahy; and County Attorney (and former Public Defender) of St. Lawrence County Stephen Button.
Joanne Macri, currently Director of Regional Initiatives for the New York State Office of Indigent Legal Services and formerly Director of NYSDA's Criminal Defense Immigration Project, received the Wilfred R. O'Connor Award. And Scott Levy, Director of The Bronx Defenders Fundamental Fairness Project, received the Kevin M. Andersen Award from the Genesee County Public Defender's Office.

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