2nd honker
Mar. 31, 2017
News Picks from NYSDA Staff
News Picks
CAL Suggests Another Way to Challenge Predicate Convictions Since Catu Was Held Not Retroactive. The March issue of the Center for Appellate Litigation (CAL) publication "Issues to Develop at Trial" discusses the Court of Appeals decision in People v Smith  (28 NY3d 191).The publication notes that Smith, which held that People v Catu (4 NY3d 242 [2005]) does not apply retroactively to predicate pleas in enhanced sentence proceedings, "closed one door on bringing a predicate challenge" but "(perhaps inadvertently) opened another ...." Under Smith, where a prior plea court failed to advise a defendant about post-release supervision and the defendant would not have pleaded guilty if properly advised, a challenge to the resulting predicate conviction remains viable. A summary of Smith, and many other Court of Appeals decisions, appears in the newest issue of NYSDA's Backup Center REPORT. Past editions of "Issues to Develop at Trial" are available on the CAL website; many thanks to CAL for making this resource available.

New DOCCS Directives on Community Supervision. The New York State Department of Corrections and Community Supervision (DOCCS) has issued several new and updated Directives on community supervision.

This Directive provides DOCCS "staff with the operating procedures for the application of the COMPAS Case Supervision Review instrument for parolees." Parole officers must complete the Case Supervision Review instrument (CSR) for each person on parole who has had 12 months of unrevoked community supervision and every 12 months thereafter, except for registered or discretionary sex offenders, Office of Mental Health designated Level 1, 1S, 2, and 2S cases (severe mental illness), and individuals in non-report status.


The CSR, which consists of 23 questions, is used to determine whether to raise, lower, or maintain an individual's current COMPAS Supervision Level. There are four levels, with Status 1 being the most intensive and Status 4 being the least intensive. According to Northpointe Inc., the developer of COMPAS, the CSR "is automatically scored and produces a suerpvision adjustment recommendation. The instrument is intended to be an objective decision support tool to guide adjustments in the current supervision level."

This Directive, which supersedes Department of Parole Manual Item 9204.09, addresses the $30 monthly supervision fee imposed on individuals who "are supervised on presumptive release, parole, conditional release or post-release supervision." Correction Law 201(9)(a). The Directive provides an outline of the circumstances under which DOCCS will waive all or part of such fee and details regarding the fee payment process.

This Directive introduces a new project that "will focus on the most high risk parolees returning from prison to the community. Interventions will include implementation of risk reduction tools such as Global Positioning System (GPS) monitoring and behavior change strategies such as focused 'call-ins.'"

This Directive establishes a grievance procedure for individuals under the supervision of DOCCS Community Supervision staff, including individuals paroled, conditionally released, released to a period of post-release supervision, released to the community via an order of strict and intensive supervision and treatment, and granted discretionary release under Penal Law 70.40(2). Only a person personally affected may file a grievance and class action grievances will not be accepted.


Many DOCCS Directives are posted on the DOCCS website . Categories of Directives that may be of particular interest to defenders include program services; health services; security services; temporary release; community supervision; and executive clemency, foreign nationals and prosecution.

DOCCS Planning to Bar Packages to People in Prison. The Daily News reported on Mar. 28, 2017, that state prison officials plan "to bar visitors from bringing packages to prisoners to cut down on contraband being brought inside ...." Only packages "sent through 'approved secure vendors,'" would be allowed. Advocates for people in prison criticized the proposal, which will be implemented as a pilot project in three as-yet-unnamed prisons. Among the objections is that many of those with loved ones inside purchase items in neighborhood stores, so limiting sales to a few approved vendors will take money away from often already marginalized communities. And for people who lack computers or bank accounts, ordering from approved vendors will be difficult if not impossible. This proposal comes on the heels of a much-maligned one in the Executive Budget to cut back on visits to maximum security prisons, which NYSDA opposed. Recent articles have reported that the Governor has agreed to drop the visitation proposal. NYSDA is continuing to monitor the State Budget for the fiscal year that starts on April 1.
As of Mar. 30, 2017, DOCCS Directive 4911 , regarding packages, remained on the DOCCS website in a version last updated on Jan. 29, 2014. The Directive notes at III.A.1 that the Commissioner may suspend all or any portion of it at any time. 

ProPublica Article Details Lack of Oversight of NY Family Court Evaluators. A recent ProPublica article examines the response of the New York State Office of Professional Discipline (also known as the Office of the Professions or OPD) to complaints filed against psychologists who conduct court-ordered evaluations in Family and Supreme Courts. According to the article, OPD generally refrains from investigating those claims "purportedly because the confidentiality of such proceedings makes them hard to penetrate even for regulators." Judges often rely heavily on the opinions of these evaluators when making custody determinations, but "their work is subject to little or no professional oversight ...." 

Association News
New Issue of NYSDA's Backup Center REPORT Available Now. The Jan-Mar 2017 issue of the Public Defense Backup Center REPORT is now available on NYSDA's website; NYSDA members will receive a hard copy in the upcoming weeks. If you have any questions, please contact the Backup Center at 518-465-3524. 

Anne Rabe Receives Shirley Chisholm Women of Excellence Award. On Mar. 17, 2017, NYSDA's Organizing Coordinator, Anne Rabe, received the Shirley Chisholm Women of Excellence Award , sponsored by Senator Jesse Hamilton (D-Brooklyn). NYSDA congratulates Anne for this well-deserved recognition of her tireless work in support of NYSDA's Veterans Defense Program and for her continued efforts to turn the Justice Equality Act into law.

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