2nd honker
Jun. 11, 2015
News Picks from NYSDA Staff

News Picks


Model Guidelines Adopted for Photo Arrays and Line-Ups. The New York State Municipal Police Training Council within the Division of Criminal Justice Services recently adopted model policies governing proper conduct of photo arrays and line-ups. Although non-binding, the policies are designed to establish guidelines "on how to conduct fair and reliable eyewitness identifications" and may be extremely helpful to defense attorneys cross-examining law enforcement officers at Wade hearings. The comprehensive guidelines cover such matters as construction and administration of the photo array or line-up, pre-and post-photo array or line-up communications with eyewitnesses, and how to record the results of the procedure. The guidelines are noteworthy for endorsement of "double-blinded" procedures ("where the administrator does not know the identity of the suspect") and "blinded" procedures (where the administrator is at least "unable to inadvertently provide cues to the witness"). Also, the guidelines call for written "confidence statements" - "[a] statement from an eyewitness immediately following their identification regarding their confidence or certainty about the accuracy of their identification," written in "their own words."


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DWI Discovery - Recent Favorable Decisions. Two trial courts recently issued favorable decisions on discovery of records relating to the Intoxilyzer.

In December 2014, a Bronx County Supreme Court judge granted the defendant's motion to compel discovery and ordered the prosecution to produce:


hard copy reports and corresponding documentation for . . . all records from December 29, 2011, through June 29, 2013, relating to the maintenance, calibration, inspection, check and/or other tests performed on the Intoxilyzer 5000EN that was utilized (one year prior to and six months following defendant's arrest); certification certificate of the Intoxilyzer 5000EN operator; and, any and all documents relating to the preparation and testing of the simulator solution, the forensic method utilized in the production of the simulator solution, the standard operating procedures for the production of all simulator solutions utilized in defendant's testing, and the actual chromatograms of the headspace gas chromatography. (Emphasis added.)


The prosecution filed a motion to reargue, which the court denied on May 22, 2015. Steven Epstein represents Mr. Ramrup. Defense attorneys may find it useful to cite the decisions in Ramrup and Torre (see below) in demands for discovery and motions to compel discovery in DWI cases.

  • People v Torre, 2015 NY Slip Op 25162 (District Ct, Nassau Co 5/19/2015)

The district court granted the defendant's motion to compel discovery of documentation, written reports, computer data or records generated concerning calibration, maintenance, repair, testing and operation of the Intoxilyzer 5000 and Simulator Solution Lot Numbers used to test the defendant's breath. The court held: "The Defendant is not to be limited to the conclusory reports regarding the maintenance, repair, testing, preparation and calibration of the simulator solution and breath test instrument used in this case, but is entitled to all back-up documentation related thereto." The decision echoes the principles applied by several other New York courts regarding a defendant's right to discovery of not just records relating exclusively to his/her breath test, but also records concerning "'the inspection or calibration or repair' of the instrument used to conduct a 'scientific test' ...." See People v Alvarez, 70 NY2d 375 (1987); People v Robinson, 53 AD3d 63, 67 (2nd Dept 2008); People v Crandell, 228 AD2d 794 (3rd Dept 1990); People v DiLorenzo, 134 Misc 2d 1000 (County Ct, Nassau Co 1987). However, unlike in Ramrup, the court limited the scope of the disclosure to approximately one month before and one month after the defendant's test.


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Suppressed Breathalyzer Refusal Can Be Used To Impeach Defendant. In People v Sanchez (2015 NY Slip Op 25170 [Criminal Ct, New York Co 5/28/2015]), the court addressed a question of first impression - "whether a defendant can be impeached . . . by a refusal to take a breathalyzer test, where that refusal was suppressed under VTL § 1194(2)(f)." The defendant's refusal had been suppressed because the police did not advise him that a refusal could lead to suspension of his license even if he was found not guilty at trial or that his refusal could be admitted against him at trial. The court found the impeachment permissible, analogizing it to People v Harris (25 NY2d 175 [1969]) aff'd sub nom Harris v New York (401 US 222 [1971]), "which h[eld] that a statement that has been suppressed due to a Miranda violation, and is hence inadmissible at trial, can still be used on cross-examination of the defendant for impeachment purposes."


It should be noted that this decision did not address whether refusals made on the advice of counsel can be used for impeachment purposes. See People v Washington, 23 NY3d 228 (2014) (holding that "the statutory right to legal consultation applies when an attorney contacts the police before a chemical test for alcohol is performed and the police must alert the subject to the presence of counsel, whether the contact is made in person or telephonically.")


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New York State Awards $1.34 Million to Programs Providing Kinship Caregiver Services. Kinship care is an arrangement in which children who have been removed from the care of their parents live full-time with a relative or some other adult with whom they have a close relationship. Research shows that children who reside with relatives experience better outcomes than children in non-relative foster care. New York State recently announced that it has awarded $1.34 million to 13 programs around the state that will provide kinship caregiver services; the Office of Children and Family Services will administer the awards. Programs will provide an array of services to kinship caregivers, including crisis intervention, family assessments, linkage to community resources, parenting education and training, support groups, and trauma screenings. To see which programs received awards, click here. More information about kinship care in New York State is available here.


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Report on the Federal Public Service Loan Forgiveness Program and Access to Justice. The National Legal Aid & Defender Association (NLADA) has released a report on the results of its survey of 2,000 public defense and civil legal aid lawyers about the federal Public Service Loan Forgiveness Program (PSLF) and the John R. Justice Student Loan Repayment Program (JRJ). "The survey results illustrate the damaging consequences that would follow capping or eliminating PSLF: a steep reduction in the number of lawyers who could afford public service careers. Their departure for jobs that allowed them to pay their law school debt would profoundly diminish access to justice for low-income people in the United States." The report notes that some members of Congress have called for the elimination of PSLF and the Obama Administration has recommended a cap on loan forgiveness of $57,000. Attorneys who want to receive updates from NLADA regarding PSLF, JRJ, and loan repayment assistance in general and share personal stories regarding how the proposed changes to these federal programs may affect them can do so using the form available here.


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