News Picks from NYSDA Staff
July 5, 2018
News Picks
Supreme Court Holds Cell-Site Location Data is Subject to Fourth Amendment’s Warrant Requirement. In a major Fourth Amendment ruling, the United States Supreme Court has held that persons have a legitimate expectation of privacy in cell site location information (CSLI) and that absent exigent circumstances police may not obtain CSLI from third parties without a warrant supported by probable cause. In Carpenter v United States , No. 16—402 (6/22/2018), prosecutors subpoenaed Timothy Carpenter’s wireless service providers under the Stored Communications Act and obtained cell-site location data that implicated him in a series of robberies. Carpenter sought suppression of the location data, arguing that a warrant supported by probable cause was required. Suppression was denied and Carpenter was convicted and sentenced to more than 100 years. The convictions were affirmed on appeal by the Sixth Circuit, which held that Carpenter lacked a reasonable expectation of privacy in CSLI maintained by the third-party wireless service providers. The Supreme Court by a 5-4 margin reversed.

Chief Justice Roberts wrote that “requests for cell-site records lie at the intersection of two lines of [Supreme Court] cases,” one that recognizes privacy interests when police engage in continuous GPS monitoring of a suspect [ United States v Jones , 565 US 400 (2012)] and another that declines to recognize a legitimate expectation of privacy in information voluntarily turned over to third parties [ United States v Miller , 425 US 435 (1976); Smith v Maryland , 442 US 735 (1979)]. Given the “all-encompassing” nature of CSLI and the pervasive use of cell phones in modern society, the majority held the third-party doctrine must yield in this context and that CSLI may only obtained by a search warrant supported by probable cause: " Given the unique nature of cell phone location records, the fact that the information is held by a third party does not by itself overcome the user’s claim to Fourth Amendment protection. Whether the Government employs its own surveillance technology as in Jones or leverages the technology of a wireless carrier, we hold that an individual maintains a legitimate expectation of privacy in the record of his physical movements as captured through CSLI."
In a footnote, the court left open the question of whether cell-site location data for a limited period of time (less than seven days) might fall outside the warrant requirement.

Justices Kennedy, Thomas, Alito and Gorsuch dissented. 

Updated Speedy Trial Manual Available. The April 2018 edition of the Criminal Procedure Law Section 30.30(1) Manual by Drew R. DuBrin, Special Assistant Public Defender in Monroe County, is available now. The manual provides a comprehensive breakdown of New York's speedy trial statute. Additionally, DuBrin has made available a helpful checklist that can be used to analyze possible speedy trial claims. NYSDA and the many who benefit from these resources wish to thank DuBrin for making it available.

Recent SORA Decisions Address Appeals and Registration Requirements. Two Appellate Division cases recently addressed Sex Offender Registration Act (SORA) issues.

Second Department: SORA Modification Denials are Appealable as of Right . In People v Charles (2018 NY Slip Op 03864 [2nd Dept 5/30/2018]), the court held: "Correction Law § 168-o(2) does not diminish, detract, or disturb this Court's jurisdiction to consider the instant appeal under CPLR 5701(a). Pursuant to CPLR 5701(a)(2)(v), '[a]n appeal may be taken to the appellate division as of right in an action, originating in the supreme court or a county court: ... from an order ... where the motion it decided was made upon notice and it ... affects a substantial right.' We will not read Correction Law § 168-o(2) as curtailing this Court's jurisdiction to entertain an appeal under CPLR 5701(a), especially where, as here, there are serious due process implications."

Third Department: Facebook Account Is Not an “Internet Identifier” Under SORA . The Third Department vacated the defendant’s conviction for failure to register and dismissed the indictment, finding that “the social media website or application – be it Facebook or any other social networking website or application – does not constitute a ‘designation used for the purposes of chat, instant messaging, social networking or other similar [I]nternet communication’ (Correction Law § 168-a [18]).” People v Ellis , 2018 NY Slip Op 03873 (3rd Dept 5/31/2018).

State Bar Approves Call for Increased Assigned Counsel Rates. On June 16, the House of Delegates of the NYS Bar Association "approved a report and resolution calling for an increase in the rates paid to private attorneys providing mandated representation for those who cannot afford to pay counsel," as noted in a press release . The report noted that fees under County Law article 18-B have not changed since 2004. In addition to urging an increase in the statutorily-set rates, the resolution also calls for rates that are: "comparable to a percentage increase of judicial and elected district attorney salaries"; for an "annual review process and adjustment using a formula similar to that of the federal Criminal Justice Act"; and for the increase to be paid at state expense, avoiding an unfunded mandate to localities. NYSDA submitted a letter of support for the resolution and report on May 30, 2018. As noted in that letter, NYSDA has a long history of advocating for assigned counsel rates sufficient to ensure quality representation and encourage private bar participation in public defense.

"Actual Innocence" Not Grounds for 440.10(1)(h) Relief from Guilty Plea. A freestanding claim of "actual innocence" cannot be raised in an effort to vacate a guilty-plea-based conviction under 440.10(1)(h), a divided Court of Appeals held on June 14 in People v Tiger . The majority opinion by Chief Judge DiFiore stressed that "that the legislative purpose in according different treatment to convictions obtained after trial and those obtained by a defendant's guilty plea in the context of newly discovered evidence was to adhere to the principle that a voluntary and solemn admission of guilt in a judicial proceeding is not cast aside in a collateral motion for a new factual determination of the evidence of guilt." Concurring, Judge Garcia emphasized that a guilty plea ends the investigation and prosecution of a case, giving a defendant who later asserts innocence a "safety net." He noted the existence of other "numerous and various relief mechanisms for a defendant" maintaining innocence despite a conviction, up to and including executive clemency.

In dissent, Judge Wilson, joined by Judge Rivera, asserted that, given the procedural posture of the case, it was too early to decide the issue. He also stated that "I disagree with the general thesis of the majority's opinion: that, short of legislative or gubernatorial mercy, no innocent person who pleads guilty, lest exonerated by DNA evidence, may vacate a conviction." A post on the New York Court Watcher blog points out that the majority relied heavily on federal Supreme Court precedents, especially Herrera v Collins (506 US 390 [1993]), "an unfortunate, if not a dreadful" decision that included votes by two justices whose concurring opinion "insisted that the Constitution does not prohibit the conviction or even execution of an innocent person , as long as proper procedures were otherwise followed."

Publication Available on Presenting a Cultural Defense. A chapter entitled "State Your Case: Best Practices for Presenting a Cultural Defense in Criminal Litigation" appears in a recent publication. The chapter, by Heather Crabbe of Northern Kentucky University Chase College of Law, "examines the evidence that can be presented on behalf of a person wishing to invoke a cultural defense" and discusses some pros and cons of using such a defense. Crabbe strongly urges use of experts to assist in developing an appropriate form of cultural defense. But the chapter also observes in its conclusion that: "[t]he formalizing of a cultural defense as a full or partial excuse has the potential to lead to some very irrational results." It suggests that a cultural defense may be "more appropriately utilized in relation to a defendant’s state of mind or for other mitigation purposes." The publication in which the chapter appears is Studies in Law, Politics, and Society, Volume 74, Special Issue: Cultural Expert Witnessing (Emerald Publishing Limited 2018).
Association News

Registration Open for NYSDA’s 51st Annual Meeting, July 22-24. NYSDA's 51st Annual Meeting & Conference will be held at the Gideon Putman Hotel & Conference Center in Saratoga Springs, NY from July 22 to 24. Attendees will hear from top presenters on a wide range of criminal defense topics including developments in New York criminal law and procedure, recent Supreme Court decisions, professional ethics and social media, mitigation, the Raise the Age law, and other relevant topics. The Annual Conference brochure is available here . The registration deadline is July 10 .

If you still need to make hotel reservations, please note that the conference room block at the alternate hotel, the Hilton Garden Inn, is almost sold out. For a list of other hotels in the surrounding area, please contact Alexandra Walters at NYSDA (518-465-3524 or

We look forward to seeing you in a couple of weeks!
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