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

News Picks


Court Signs Off on the Hurrell-Harring Settlement with the State and Five Counties; Clock Starts on Implementation. On Mar. 11, 2015, acting Albany County Supreme Court Justice Gerald Connolly approved the settlement agreement between the plaintiffs, represented by the New York Civil Liberties Union and Schulte Roth & Zabel, and the State and the five counties joined in the Hurrell-Harring class action suit (Onondaga, Ontario, Schuyler, Suffolk, and Washington). News of the settlement's approval appeared in the New York Law Journal on March 18, which NYSDA Executive Director Jonathan Gradess remarked was the 52nd anniversary of Gideon v Wainwright. Approval of the settlement starts the clock on implementation of the agreed-upon reforms, most of which have been delegated to the NYS Office of Indigent Legal Services. The first major deadlines are in mid-September; by then, the ILS Office must develop a written plan for ensuring representation by counsel at arraignment in all five counties; ensure that the caseload/workload of each attorney representing public defense clients in criminal proceedings in the five counties can be adequately tracked and reported; establish written plans to improve the quality of public defense representation in the five counties; and issue criteria and procedures to guide courts in counties outside of New York City in determining eligibility for public defense representation.


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Report on the Lack of Attorneys at Bail Hearings Around the Country. Also on the anniversary of Gideon, the Constitution Project's National Right to Counsel Committee released its report, "Don't I Need a Lawyer? Pretrial Justice and the Right to Counsel at First Judicial Bail Hearing." The report discusses the important role defense counsel plays at an initial bail hearing, which is supported by empirical data showing that "a higher proportion of represented detainees charged with non-violent and serious offenses are released on recognizance or at significantly lower bail amounts." It also notes the positive impact early entry of counsel has on the rest of the case, including immediate investigation, building a trusting client relationship, and sparing clients the adverse trial consequences of pretrial incarceration.


While the report correctly states that New York law requires counsel at arraignment, it does not mention that the law is not being followed in most of the state. Initial steps are being taken to meet that requirement. As noted above, the Hurrell-Harring settlement requires that the ILS Office develop a plan to ensure that criminal defendants receive in person representation at arraignment in five counties, full implementation of which is supposed to occur within 20 months of Mar. 11, 2015. And there are a number of other counties where counsel is currently present at first appearance in at least some courts, funded through grants from the ILS Office.


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Courts Must Consider Firearm Use or Possession and Certain Protection Order Violations When Making Bail Decisions in Domestic Cases. The Mar.13, 2015 issue of the Office of Probation and Correctional Alternatives' newsletter eFocus includes a practice tip for probation officers about the 2012 amendment to CPL 510.30 that requires courts to consider the defendant's "history of use or possession of a firearm" and any violation of an order of protection issued by any court for the protection of a family or household member, whether or not the order is currently in effect, when determining release on recognizance or bail in cases where the defendant is accused of a crime against a family or household member, as defined in CPL 530.11(1). The practice tip states:


When providing information to the courts at the pre-trial stage, probation departments and pre-trial services programs are reminded to report such firearm and order of protection information for the judge's consideration. Authorized users should utilize the Domestic Incident Repository, Order of Protection Registry, and Criminal History information available through the IJ Portal as necessary when reviewing these factors.


The OPCA State Director's Memorandum about the 2012 amendment, # 2013-3, provides:


Notably, this addition to the bail and recognizance statute does not require a conviction. Further, as courts do not have access to the Domestic Incident Report Repository (DIRR), information available to probation departments and the law enforcement community from the DIRR with respect to the defendant is relevant and would prove of assistance as such aforementioned factors must now be considered by judges when making a judicial determination in this area.


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Shaken Baby Syndrome (SBS): Approaching a Tipping Point? Mounting investigation and research into the claimed scientific basis for prosecutions involving Shaken Baby Syndrome (SBS) is beginning to make a difference in overcoming the numerous flawed convictions--and preventing new ones--that have for decades splintered families and too often held innocent parents and caregivers hostage to a criminal justice system that sometimes seems to thrive on conviction rates at the expense of reason. The Washington Post has undertaken an investigative series, "A Disputed Diagnosis Imprisons Parents," which delves into case studies and presents an insightful dialogue on the issues with prosecutors, physicians, and biomechanical engineers. PBS has also recently reported on the issues in a concise PBS Newshour presentation, A Disputed Diagnosis that Sends Parents to Prison for Abuse.


It is important to bear in mind that wrongful convictions are not the only damage caused by false SBS allegations. Misdiagnoses can have a dangerous impact on the welfare of children by preventing or delaying appropriate treatment and by separating children from caring parents, either directly or derivatively, as pointed out in a recent article by Katherine Judson published by the ABA Section of Children's Rights Litigation, "What Child Welfare Lawyers Need to Know about Shaken Baby Syndrome." Family Court practitioners should be equally as prepared to meet cases founded in SBS as criminal defenders.


For those who may wish to take a more active role in continuing the momentum, there are blog sites dedicated to the issues: http://onsbs.com/ and https://protectinginnocentfamilies.wordpress.com. There is also an online petition promoting the funding of a Congressional study to comport with the need for competence in forensic sciences as called for by the 2009 National Academy of Sciences report Strengthening Forensic Science in the United States: A Path Forward.


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Second Department Vacates Neglect Finding and Dismisses Petition Against Mother with Mental Illness. With no other evidence of a history of mental health issues, a mother required medical assistance in an emergency room and then in a mental health treatment facility for a short time. Although the maternal grandmother, with whom the court had placed the child, conceded that the mother had appropriately cared for the child before and after her hospitalizations and she was able to meet the child's needs, the Family Court concluded that the mother had neglected her child. The Second Department reversed, finding that "[t]here was no evidence that the mother ever failed to properly care for the child or provide the child with adequate food, clothing or shelter. Rather, the evidence indicated that the child was a healthy, active and intelligent two year old." Matter of Nialani T., 2015 NY Slip Op 00894 (2nd Dept 2/4/2015).


The Second Department noted that Family Court Act 1046(b)(1) and Nicholson v Scoppetta (3 NY3d 357, 368 [2004]) require both that "a child's physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired and second, that the actual or threatened harm to the child is a consequence of the failure of the parent ... to exercise a minimum degree of care ...." While "[p]roof of ongoing mental illness and the failure to follow through with aftercare medication, which results in a parent's inability to care for her child in the foreseeable future, is a sufficient basis for a finding of neglect,'" and there was evidence that the mother stopped taking her medicine and her treating psychiatrist did testify that "it would be difficult" for her to care for others without that medication, this "does not satisfy the petitioner's burden of proof." The evidence did not show that the mother's failure to take the medication was a clear refusal to comply with treatment, and there was evidence that she went to hospital appointments and complied with treatment.


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No Time Limit on a Family Court Act 1061 Motion to Vacate. The Second Department reversed a Kings County Family Court decision denying a mother's motion pursuant to FCA 1061 to vacate a neglect fact-finding "on the ground that it lacked the authority to vacate ... because the case had been closed." The Second Department held that "a finding of neglect does not expire with an order but rather constitutes 'a permanent and significant stigma which might indirectly affect [a person's] status in future proceedings' ...." Matter of Josephine G.P., 2015 NY Slip Op 02130 (2nd Dept 3/18/2015).


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NYCLU Wins Access to Erie County Sheriff's Office Stingray Records. On Mar. 17, 2015, an Erie County Supreme Court judge ordered that the Erie County Sheriff's Office (ECSO) must hand over records related to its acquisition and use of a Stingray (a cell site simulator) to the New York Civil Liberties Union (NYCLU). The 24-page decision in Matter of NYCLU v Erie County Sheriff's Office is available here. According to a Mar. 20th New York Law Journal article, the judge found that "the New York Civil Liberties Union's FOIL request was met with 'unfounded denials' and 'inexcusable delays' from the sheriff's department." As noted in the Mar. 16 issue of News Picks, the NYCLU filed this CPLR article 78 action against the ECSO last November, after the ECSO denied its FOIL request for records about the Office's use of the Stingray. In an NYCLU press release about the victory, NYCLU Staff Attorney Mariko Hirose, lead counsel on the case, said: "The court today has confirmed that law enforcement cannot hide behind a shroud of secrecy while it is invading the privacy of those it has sworn to protect and serve. ...The public has a right to know how, when and why this technology is being deployed, and they deserve to know what safeguards and privacy protections, if any, are in place to govern its use."


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