2nd honker
May 17, 2017
News Picks from NYSDA Staff
News Picks
Court of Appeals Upholds Denials of Relicensing Based on Prior DWIs. Five Court of Appeals judges rejected challenges to New York State Department of Motor Vehicles (DMV) regulations, 15 NYCRR 136.5(b), underlying denials of relicensing to drive after license revocation under Vehicle and Traffic Law (VTL) 1193(2)(b). Matter of Acevedo v New York State Dept. of Motor Vehs.2017 NY Slip Op 03690 (5/9/2017). An introductory "for the following reasons" phrase in the opinion is followed by a litany of drunk driving problems--the "'carnage'" drunk drivers cause, their "'grisly toll on the Nation's roads,'" etc.--especially recidivist offenders.
All the substantive claims raised by the petitioners failed. The Court rejected the argument that the regulations conflict with provisions in the VTL, finding that the cited statutory provisions do not entitle an offender to be relicensed after the given statutory revocation period, but rather allow relicensing in the discretion of the DMV commissioner, and the commissioner did not "abdicate her discretion by formalizing it" in the contested regulations. The Court also rejected the petitioners' separation of powers argument . The petitioners failed to carry the heavy burden imposed for claims that the challenged regulations so lack reason "that they are 'essentially arbitrary' ...." The Court noted that that DMV considered its own empirical data in formulating what constitutes a "'serious driving offense'" under the regulations, and that including a "'serious driving offense' provision in the Regulations amounts to a ... value judgment warranting substantial deference." Similarly, the Court found that the definition of "'alcohol- or drug-related driving conviction or incident'" is not essentially arbitrary; exclusion of youthful offender violations reflects a reasonable determination that youthful conduct may be attributed to age and immaturity, differentiating it from other drunk driving offenses, and exclusion of certain other felonies "reasonably recognizes that such convictions do not necessarily involve drunk driving ...." Finally, the Court concluded that consideration of the petitioners' convictions that predate the regulations did not constitute impermissible retroactive application, and the prohibition on ex post facto laws does not apply to relicensing, which is civil in nature.
Notices About Use of Jail Phone Calls Should Be Specific. A defendant unsuccessfully challenged in the Second Department the trial use of recorded phone calls he made from jail. Rejecting claims that such use was unconstitutional, and also improper because there was no consent to dissemination of those recordings to the prosecution, the majority affirmed the conviction. The court did note that the better practice would be for the jail--Rikers Island--to include in a warning about calls being recorded an express notification that the recordings might be turned over to the District Attorney. The decision said that while lack of such warning does not render improper any use of such recorded calls at trial, trial courts "must weigh the probative value of the recordings against the potential for prejudice to the defendant ...." People v Diaz , 2017 NY Slip Op 03013 (2nd Dept 4/19/2017). Judge Hall dissented, referring to Judge Pigott's dissent in People v Johnson (27 NY3d 199 [2016]). Hall was "troubled by the fact that pretrial detainees cannot speak to family members without members of the District Attorneys' Offices listening in," especially without being informed that the calls might be provided to prosecutors. In February, the Court of Appeals, in a 4 to 2 decision, held that a trial court did not abuse its discretion in admitting as an adoptive admission the contents of a call a defendant made from jail to his ex-girlfriend. That case, People v Vining  (28 NY3d 686 [2/14/2017]), was summarized in the Jan.-Mar. 2017 issue of the REPORT (p. 16).
In addition to warning clients about the potential use by prosecutors of any calls made from jail, and citing language from Diaz when objecting to any such use, defense lawyers may want to consider asking their local jail to furnish more explicit notices. As Hall noted, jails have "no legitimate interest in harvesting evidence for the prosecution," and an arrangement in which jail calls are provided to the prosecution "simply adds to the well-documented disparities between defendants who can afford to make bail and are at liberty while awaiting trial, and those who cannot afford to make bail and are in pretrial detention facilities." 
On a related note, one Long Island law firm brought a CPLR article 78 action seeking to bar a district attorney's office from ordering recordings of calls clients made from jail "without a subpoena issued upon notice to defense counsel" and to compel the Sheriff "to deliver such recordings only after receiving a properly issued subpoena and sending the recordings and a list of all calls made by inmates to a court or grand jury for review ...." On Apr. 26, 2017, the Second Department affirmed dismissal of that proceeding in Matter of Raiser & Kenniff, P.C. v Nassau County Sheriff's Dept. (2017 NY Slip Op 03183).

ILS Releases Caseload Standards for Hurrell-Harring Counties. On May 10, the New York State Office of Indigent Legal Services (ILS) released caseload standards for the five counties involved in the Hurrell-Harring settlement. The standards include both maximum annual case assignment limits and a minimum average number of hours attorneys should spend on each case. The standards are broken down into seven case categories: violent felonies, non-violent felonies, misdemeanors and violations, post-disposition (including probation revocation), parole revocation, appeals from verdicts, and appeals from guilty pleas. Maximum caseloads range from 300 cases per year for misdemeanors and violations to 12 per year for appeals from guilty verdicts. Attorneys should be spending around 38 hours on each violent felony, 19 hours on non-violent felonies, and 54 hours on appeals from guilty verdicts. The full report , dated Dec. 8, 2016, was discussed in an article on the new reforms by David Carroll of the Sixth Amendment Center.
In its report, ILS estimates the cost of implementing these standards in the settlement counties at $19 million annually. ILS recommends that the standards be phased in over a two-year period. While no estimate was provided for the cost of implementing these caseload standards in non-settlement counties, ILS previously reported that, "[i]n order to comply with maximum national caseload limits [which are higher than the newly-released ILS standards] in 2015, New York would have to spend" approximately $99 million on public defense services in counties outside of New York City. As noted in the  Apr. 20, 2017 issue of News Picks, the 2017-2018 state budget requires ILS to "[d]evelop and implement a written plan that establishes numerical caseload/workload standards for each provider of constitutionally mandated publicly funded representation in criminal cases for people who are unable to afford counsel." This plan must be completed by Dec. 1, 2017.

OCA Seeks Comments on Proposed Prosecution and Defense Disclosure Obligations Model Orders. The Administrative Board of the Courts is seeking comments on two proposed model standing orders regarding prosecution and defense disclosure obligations. The model orders were recommended by the New York State Justice Task Force in its February 2017 report on attorney responsibility in criminal cases. The Mar. 1, 2017 issue of News Picks provides additional information about that report.
  • Model order for prosecutors: "[T]he Task Force recommended that courts issue an order directing the prosecuting authority to disclose all covered materials and that such order should be directed to the District Attorney and the Assistant responsible for the case."
  • Model order for defense attorneys: "[T]he Task Force recommended that courts adopt an order to be issued by the trial court on every criminal case, directing defense counsel to comply with the defendant's statutory notice obligations and seeking to ensure constitutionally effective representation. This order should be directed to the firm or institutional defender (and also to the individual attorney responsible for the case at a firm or institutional defender). For non-institutional providers, it should be directed to the individual defense counsel. The defendant should be provided with a copy of the order."
Comments may be submitted by email to rulecomments@nycourts.gov  or by mail to: John W. McConnell, Esq., Counsel, Office of Court Administration, 25 Beaver Street, 11th Fl., New York, NY 10004. Comments must be received by June 5, 2017. Those who submit comments are asked to forward a copy to the Backup Center.

Federal Judge Finds Harris County Cash Bail Policy in Misdemeanors Unconstitutional. In an Apr. 28, 2017 decision , the Chief Judge of the U.S. District Court for the Southern District of Texas, Lee Rosenthal, found that Harris County's "consistent and systematic policy and practice of imposing secured money bail as de facto orders of pretrial detention in misdemeanor cases ... violates the Equal Protection and Due Process Clauses of the United States Constitution." ODonnell v Harris County, Texas, No. 4:16-cv-01414, 2017 US Dist LEXIS 65445. The court granted a preliminary injunction, which, among other things, enjoined Harris County and its policymakers "from detaining indigent misdemeanor defendants who are otherwise eligible for release but are unable because of their poverty to pay a secured money bail." The court did not strike down the use of secured money bail; instead, it enjoined the County from "setting the amount of bail on a secured basis in a way that detains, rather than releases, misdemeanor defendants who would be released if they could pay but who are unable to do so, in violation of the Constitution."
As noted in a New York Times editorial about the decision, in response to arguments by the county lawyer that poor defendants remained in jail because they "'want' to be there, especially 'if it's a cold week,'" Judge Rosenthal said the argument is "'uncomfortably reminiscent of the historical argument that used to be made that people enjoyed slavery.'" The editorial also noted that while "[t]he ruling in the Harris County case is temporary, [] its broader significance lies in the slew of factual findings Judge Rosenthal made and the legal conclusions she reached. Her careful reasoning could transform the growing debate over bail reform nationwide."
On Friday, May 12, the Fifth Circuit Court of Appeals temporarily granted the defendants' motions to stay the preliminary injunction , which was set to take effect on May 15, pending appeal until further order of the court.

Kings County Family Court Returns Children to Parents in Res Ipsa Case. At a hearing to return the children to their home pursuant to Family Court Act 1028, a Kings County Family Court judge heard conflicting conclusions regarding the origin or cause of burns to one of the children, but, without making a determination as to the cause, returned the children to the parents under conditions meant to ensure that the children would be safe from risk of harm. Matter of Vinny Z. , 2017 NY Slip Op 27142 (Family Ct, Kings Co 4/13/2017). The Administration for Children's Services (ACS) removed the two children based solely on the child's burns, despite the respondent parents and the child making consistent reports on the cause of the injuries and a burn specialist treating the child indicating that he did not suspect that child abuse had occurred. A child abuse pediatrician, who did not personally examine the child or his injuries and did not meet with the father, concluded from photographs that the nature of the injuries was inconsistent with the explanation given by the respondent mother and the child.
The court determined that both parents were credible as to their "love and devotion to their children and in their later regret related to the injury Vinny sustained. ... It was also clear that they both had a sincere fear of ACS and other law enforcement based on experiences in the immigrant community, some for legitimate reasons and some exaggerated by the media or the rumor mill." The parents' willingness to cooperate with agency demands and completion of tasks assigned to them reassured the court that the children could be safely placed back home. Additionally, the children were placed in a kin foster home and, as a result, the parents spent considerable time parenting them under supervision without raising any safety concerns.

Association News
O'Brien to Take the Lead at NYSDA. On Apr. 28, 2017, the Board of Directors selected Managing Attorney Charles F. O'Brien to replace Executor Director Jonathan E. Gradess, who is retiring later this year. Charlie, who has been at NYSDA's Backup Center for over 30 years and is thoroughly acquainted with every aspect of the Association's work, will be taking the helm at a critical time for public defense in New York State. The historic Hurrell-Harring settlement is in its second year of implementation; those settlement reforms were expanded statewide in the recently-passed state budget; a host of other changes are occurring that will affect public defense; and the need for further transformations in the justice system continues. NYSDA needs a leader well-versed in New York's public defense issues, well-respected both within NYSDA and by those in the disparate entities with which the Backup Center works, and committed to client-centered representation. Charlie possesses all these essential qualifications and many others, as noted in this news release. Congratulations, Charlie!
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