2nd honker
June 30, 2017
News Picks from NYSDA Staff
News Picks
Federal and State Right to Privacy of Cell Site Location Information. The June 2017 edition of the Center for Appellate Litigation's Issues to Develop at Trial urges practitioners to make motions to suppress cell site location information (CSLI), arguing that such information is protected by a right of privacy under the U.S. and New York Constitutions. Prosecutors use information gleaned from cell towers to establish a defendant's alleged location. CAL cautions that, "[w]hile arguments can be made that the cell data doesn't establish who was using the phone-just that someone was using your client's phone-or the location with exact precision, it is still very damning information." To combat this, CAL advises practitioners to move to suppress CSLI under the Fourth and Fourteenth Amendments to the U.S. Constitution and Article I, §12 of the New York Constitution. "Prolonged electronic surveillance of the location of a person's cell phone is at least as invasive as prolonged electronic surveillance of the location of his or her car, which is protected," CAL argues. "Such monitoring can reveal intimate and private information about a person's political, professional, religious, and sexual associations, including their movements in private as well as public spaces." Prior editions of Issues to Develop at Trial are available at www.appellate-litigation.org/issues-to-develop-at-trial .

Bronx Family Court Discovery-Sharing Prohibition Violates 1st and 6th Amendment Rights. By unanimous decision, the First Department reversed a Family Court order that denied two mothers' motions to clarify that they could share information legally obtained in a Family Court matter with their respective criminal defense attorneys when the cases were related. Matter of Sean M. , 2017 NY Slip Op 05184 (6/27/2017). NYSDA and many others associated with family defense filed amici curiae briefs in support of the appellant. The First Department said, "[t]he restrictions noted in Social Services Law § 422(4)(A) did not bar them from providing to their criminal defense counsel [Administration for Children's Services] records lawfully obtained in their neglect proceedings. Any other result would violate their First and Sixth Amendment rights ...."

KIDS COUNT 2017 Data Book Available . The Annie E. Casey Foundation has produced the 2017 KIDS COUNT Data Book that details, by state, information about the well-being of children as measured by specific indicators: economic well-being, health, education, and family and community. Family defense practitioners can use the Data Book as a reference when communicating with others about difficulties families experience in the communities where they practice. Using the Touchstones framework , the New York State Council on Children and Families also regularly tracks data through its Kids' Well-being Indicators Clearinghouse (KWIC), including data about child abuse and maltreatment reports, foster care, and termination of parental rights. KWIC data includes reports that detail data measured by county. 

Compilation of Federal Collateral Consequences Launched. A searchable database provides information on the restrictions and disqualifications that federal statutes and regulations impose based on an individual's criminal record. It includes laws that authorize or require criminal background checks when the person seeks specific federal benefits or opportunities. Searches include broad categories like "Employment" and "Government benefits" and keywords relating to the specific people, activities, or benefits that a consequence may affect, from "Nursing" to "Child custody & parental rights" to "Retirement & pensions." The data used in this resource from the Collateral Consequences Resource Center is "derived from the National Inventory of the Collateral Consequences of Conviction (NICCC), a database originally compiled by the American Bar Association under a grant from the National Institute of Justice pursuant to the Court Security Act of 2007. The NICCC itself is currently hosted by the Council of State Governments on the website of the National Reentry Resource Center." The announcement of the database says that state-specific databases are in the works, and that feedback about this new tool is welcome.

Third Department Rules GPS is a Portable Electronic Device as Defined by VTL. In this CPLR article 78 proceeding, Matter of Clark v New York State Dept. of Motor Vehs. (2017 NY Slip Op 05133 [3rd Dept 6/22/2017]), the Third Department affirmed the ruling by the Department's Appeals Board, holding that a global positioning system (GPS) "meets the statutory definition of a 'portable electronic device' inasmuch as it is a 'hand-held device with mobile data access' (Vehicle and Traffic Law § 1225-d [2] [a])." In reaching this decision, the court noted that "a review of the pertinent legislative history regarding Vehicle and Traffic Law § 1225-d demonstrates that the Legislature intended Vehicle and Traffic Law § 1225-d (2) (a) to encompass any portable electronic device that diverts a driver's attention away from the road and prevents the full use of a driver's hands ...." Thus, the Appeals Board's decision was rational. And since the petitioner conceded that he was holding the GPS to read directions, there is sufficient evidence that the petitioner was using the device. 

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