2nd honker
Jul. 31, 2015
News Picks from NYSDA Staff

News Picks


Advisory on the Impact of Mellouli v Lynch on Controlled Substance Cases for Immigrant Clients. The Immigrant Defense Project (IDP) has made available an advisory for New York criminal defense attorneys about the impact that Mellouli v Lynch (135 SCt 1980 [6/1/2015]) may have on immigrant clients. As the advisory notes, in Mellouli, "the Court held that where the government seeks to deport an immigrant for a drug paraphernalia conviction, the government must tie the conviction to a substance listed on the federal controlled substances schedules." The advisory continues: "In cases where your immigrant client cannot avoid a disposition under Article 220 ... of the New York Penal Law ..., Mellouli provides that your client may still avoid future immigration consequences if you can negotiate a tailored plea agreement and/or allocution. This advisory details what such a plea agreement and/or allocution would look like." IDP and the National Immigration Project of the National Lawyers Guild also released a national practice advisory about Mellouli, which is available on the IDP website.


Return to Top



Third Department Finds No Record Support for Permanent Neglect and Termination of Parental Rights. The Third Department, in Matter of Marcus BB. (2015 NY Slip Op 05994 [3rd Dept 7/19/2015]), found there was no record support for the orders granting the permanent neglect petition and terminating the respondent mother's parental rights, reversed the permanent neglect order, and dismissed the petition. The family court erred in concluding that the mother failed to substantially plan for her child's future. After an earlier neglect finding, the mother completed the many tasks required for the return of her child in less than one year and the child was discharged to her care on a trial basis. However, during an unannounced visit two months later, the father, who was subject to a protective order that prohibited contact outside of visitation monitored by the petitioner, was found in the home. The petitioner immediately removed the child and, six months later, filed for termination. Despite the mother's prior success, her meaningful contact with the child even after the child was removed the second time, her continued planning for the child's return, and the agency's plan to discharge the child to the father, the agency nevertheless asserted that the permanent neglect petition and termination of parental rights were necessary.


"[T]he record as a whole does not contain clear and convincing evidence that respondent permanently neglected her child. To find otherwise would be to hold respondent to an unreasonable standard and ignore well-settled precedent requiring only evidence of meaningful steps toward amelioration of the original condition, not proof of perfect compliance with petitioner's mandates." (Footnote omitted.) The Third Department noted that, were it to continue its inquiry, it would have also found that the family court erred in terminating the mother's parental rights as there was no need to free the child for adoption since the plan was to restore custody to the father.


Return to Top



Risk Assessment Instruments - What Defense Lawyers Need to Know. The National Legal Aid & Defender Association and the American Council of Chief Defenders have published an informative report on the increasing use of risk and needs assessment instruments in criminal cases. The report, Risk & Needs Assessments: What Defenders and Chief Defenders Need to Know, addresses the use of these types of instruments in such matters as bail determinations, sentencing, and parole and probation supervision.


New York State uses a number of risk and needs assessment instruments, including COMPAS (Correctional Offender Management Profiling for Alternative Sanction), YASI (Youth Assessment Screening Instrument), specialized DWI instruments (NYS Office of Probation and Correctional Services State Director's Memorandum 2014-4 & summary), Static-99, and the often-criticized Sex Offender Registration Act (SORA) Risk Assessment Instrument, which has never been validated. The Aug.-Nov. 2014 issue of the Public Defense Backup Center REPORT includes a discussion about risk assessment instruments and how they can hurt and help clients (beginning on p. 5).


Return to Top



July 2015 Court of Appeals Update from the Center for Appellate Litigation. The Center for Appellate Litigation's (CAL) most recent Court of Appeals update is now available here. The update contains a list of criminal cases currently pending in the New York Court of Appeals with summaries. The update is done every two months for CAL staff and is made available to Chief Defenders and others who do substantial appellate work. NYSDA appreciates the opportunity to distribute it. The update will be posted on the CAL website at http://www.appellate-litigation.org/court-of-appeals/.


Return to Top



NACDL Training for Public Defense Lawyers in Syracuse in September. The National Association of Criminal Defense Lawyers (NACDL) is presenting a free CLE program for New York public defenders and appointed counsel on Sept. 11-12, 2015 at the Syracuse University College of Law. Registration is limited to 100 participants, and only attorneys who practice a significant amount of indigent criminal defense are eligible to attend. More information about this program, including a draft agenda and registration form, is available at http://www.nacdl.org/syracuse/.


Return to Top



Kentucky Investigation Institute for Investigators and Attorneys This Fall. Registration is now open for the Kentucky Investigation Institute for Investigators and Attorneys, which is scheduled for Sept. 27 - Oct. 2, 2015. "The Kentucky Department of Public Advocacy offers an opportunity to participate in one of the most complete and comprehensive courses for criminal defense investigators in the country, open to criminal defense investigators as well as attorneys who want to work more effectively with investigators." More details about the six-day intensive training are available here. The program has filled up quickly in the past, so be sure to apply early. The application form is available here. NYSDA's Director of the Public Defense Investigation Support Project, Yasmin Davis, attended the program last year and highly recommends it. The Backup Center can answer questions about the program if you have them.


Return to Top



OMH & OASAS Holding Fact-Finding Forums on Consolidation. The Commissioners of the NYS Office of Alcohol and Substance Abuse Services (OASAS) and the NYS Office of Mental Health (OMH), along with the Chair of the NYS Behavioral Health Services Advisory Committee, are jointly chairing a Steering Committee that is considering whether to consolidate the missions of OASAS and OMH into a unified behavioral health services agency. The Steering Committee is hosting fact-finding forums this summer to get input from consumers, family members, and other stakeholders about issues including: whether the public would be better served by consolidation; whether treatment outcomes would be favorably or unfavorably affected by a consolidated agency; how people currently get information about and locate appropriate mental health or substance use disorder treatment; and whether individuals have experienced terminology barriers to their understanding of what services are appropriate to their needs.


Three forums were held in July and two are scheduled for the month of August, one on Aug. 12 at Molloy College in Farmingdale, and the other on Aug. 20 at the Buffalo & Erie County Public Library. Pre-registration is encouraged, as seating is limited. Comments and recommendations may also be submitted online. The July forums in New York City and Albany may be viewed at the link above. The Steering Committee's final report is expected by the end of this year.


Return to Top  


Association News


New Issue of NYSDA's Backup Center REPORT. The latest issue of the Public Defense Backup Center REPORT (May-July 2015) is now available on NYSDA's website; the print version will be mailed out shortly. 


Return to Top  


Copyright © 2012-2015 New York State Defenders Association