2nd honker
Nov. 12, 2015
News Picks from NYSDA Staff
News Picks
Parental Representation Standards Approved. On Friday, Nov. 6, 2015, the NYS Indigent Legal Services Board unanimously approved the Office of Indigent Legal Services' "Standards for Parental Representation in State Intervention Matters." The Standards , which take effect Dec. 1, 2015, are divided into two categories: Qualifications, Experience, Training and Oversight; and Duties of Counsel. The Duties of Counsel category covers a range of topics, such as protecting the client's interests and advancing the client's goals and the relationship with the client; the breadth, continuity, and duration of representation; and the various stages of a case, from representation prior to court intervention through appeal. The ILS Office now has three sets of standards; the other two standards cover trial representation and appellate and post-conviction representation .
Error to Admit Statements Made After Right to Counsel Attached. The Third Department has ruled that it was error to admit statements made by the defendant to the police after his indelible right to counsel attached and that the error was not harmless. People v Slocum, No. 105213 (3rd Dept 11/12/2015). The defendant, who was represented by the Washington County Public Defender's Office in another case, was arrested and questioned by two police officers about a triple homicide. Before the arrest, the Public Defender sent a letter to the district attorney's office, the sheriff's department, and the state police advising that the defendant was a client, he would be qualified for representation on any additional charges, and the defender knew that the client was a suspect in the homicide. The Public Defender asked to be contacted if the client was arrested and/or detained and requested that the client not be questioned or interrogated without counsel present. The police, who were aware of the letter, started the interrogation by asking the defendant whether he felt he should have an attorney and whether he planned to use the public defender's office to represent him regarding the new charges. He replied, "Yeah, probably." Despite this response, and without telling the defendant about the letter, the police had the defendant sign a Miranda rights form and interrogated him. The Third Department concluded: "a reasonable police officer would have understood that defendant's statement was a request for counsel, requiring questioning without representation to cease ...." Even if the police could have considered the defendant's response equivocal, they had an obligation to inquire further to determine if the indelible right to counsel had attached.
The Third Department also held that the defendant's statements to a child protective services caseworker should have been suppressed as the caseworker was acting as a law enforcement agent; the defendant's right to counsel had attached before the caseworker questioned him at the jail, a sheriff's investigator was present during the questioning, and the caseworker "acknowledged that she works closely with the police in these types of cases ...."

Parole Board Ordered to Review Parole Denial in Light of Sentencing Minutes. The Third Department, in a 3-to-1 decision, has affirmed a judgment granting an article 78 petition, annulling the Board of Parole's seventh denial of parole release in a 1982 homicide case, and directing the Board of Parole to conduct a de novo hearing that includes consideration of previously unavailable sentencing minutes. Matter of Duffy v New York State Department of Corrections and Community Supervision , 2015 NY Slip Op 07891 (3rd Dept 10/29/2015). The sentencing minutes, thought to be lost and not previously considered by the Board, show that the sentencing judge "implicitly addressed [the] issue [of a parole recommendation] by discussing in some detail his discomfort with the required maximum range of the sentence (i.e., life in prison) and then imposing less than the maximum on the lower range where he had discretion." Directing a de novo hearing was not error given the issues addressed by the judge at sentencing and the fact that the Board's decision rested primarily on the seriousness of the crime.
The dissent argued that the sentencing court's remarks related to the due consideration of the proper sentence and appellate courts should not consider such remarks as parole recommendations, and concluded that the Board's failure to consider the sentencing minutes was harmless error. 
This decision underscores the need for defense counsel to be vigilant in making a complete sentencing record and ensuring that such record remains available for use by the Parole Board.
They Found Your Client's DNA? Don't Give Up Yet. A graphic reminder that someone's DNA found at a crime scene may be unrelated to the crime was recently published in The New Republic. Excerpted from Inside The Cell: The Dark Side of Forensic DNA, the article noted that transfer DNA might well have incriminated an innocent person in a brutal killing - except the suspect had died before the crime occurred. " How DNA Evidence Incriminated an Impossible Suspect " describes the discovery of DNA from someone with a criminal record on the body of a Yale graduate student dumped in "a small mechanical chase" at a school laboratory. The mystery posed by records showing the person whose DNA was found had died two years earlier was solved by the ultimate determination that the "suspect" had done construction work on the lab, and the DNA he had deposited on vent piping in the chase was transferred to the victim when her body was placed there years later. The article says that DNA transfers quite readily, and "secondary" transfer is common, as examples in the article illustrate.
But questions arise. Did a sufficient quantity of DNA transfer to be identified correctly? Do existing science and other facts support allegations about whose DNA it is and how it got there? See for example, " CSI UIndy: Study shows secondary DNA can wind up at crime scenes" and "As Forensic Analysis Techniques Improve, Experts Spotlight Risks of Secondary DNA Transference."  The bottom line - discovery of DNA on physical evidence requires thorough investigation of when and how it came to be there. Lawyers are encouraged to contact the Backup Center for information when they encounter such a case, and to share any new scientific or investigative resources and strategies they develop.
Public Hearing on Oversight and Investigations of NYS DOCCS. The NYS Assembly Standing Committee on Correction will be holding a public hearing on Dec. 2, 2015 in Albany to examine the oversight of the NYS Department of Corrections and Community Supervision (DOCCS). The hearing will "examine both the internal and external options for independent investigations to ensure the safety of staff and inmates, and guarantee the integrity of the Department." Those wishing to give oral testimony must submit the reply form available at the link above. If you submit written testimony, please forward a copy to the Backup Center.
Visitation Denied to Paternal Grandmother Who Petitioned 11 Months after Last Contact with Grandchildren. A Suffolk County Family Court judge recently granted a respondent mother's motion to dismiss the paternal grandmother's visitation petition for lack of standing. Matter of MJM v MM , NYLJ 1202740671896 (Family Ct, Suffolk Co 10/19/2015) [subscription required]. The petitioner is the mother of a man accused of stabbing the mother of his children in front of them. That incident gave rise to criminal, matrimonial, and personal injury proceedings and a no-contact order of protection was issued against the children's father on June 28, 2014.
The respondent mother did not dispute that the grandmother "always had a great relationship with her grandchildren," but asserted that they did not have the same relationship when the visitation petition was filed, eleven (11) months after the no-contact order was issued. Although the no-contact order did not apply to the grandmother, she had not seen her grandchildren throughout that period. The grandmother admitted that her son lived with her and she shared financial accounts with him, but asked the court to order visitation despite her support of her son in the pending cases because "her son's issues, his cases and her financial support of him were not relevant to her visitation with her grandchildren."
"It is axiomatic that the Court does not reach the issue of whether visitation with the paternal grandmother is in the children's best interests until and unless the Court finds that the paternal grandmother has standing to bring her petition." Because the facts were not in dispute, the court determined that the issue of standing could be decided without a hearing. Given the petitioner's lack of contact with the grandchildren and her close relationship with her son, the court found she "failed to demonstrate that 'circumstances show that conditions exist which equity would see fit to intervene' and that she has standing to file her visitation petition ( D.R.L. §72(1) ...)."
Association News
NYSDA Board Endorses ILS Appellate Standards. At its Oct. 30, 2015 meeting, NYSDA's Board of Directors passed a "Resolution Endorsing the New York State Office of Indigent Legal Services Appellate Standards and Best Practices." In the "whereas" clauses preceding the endorsement, the resolution recounts NYSDA's commitment to improving the quality of representation of public defense clients after conviction or other unfavorable disposition; NYSDA's ongoing recognition of the important role of standards in improving representation; the adoption of the new ILS standards; and the discussion within segments of the bar about certain provisions of those standards as set out in the New York Law Journal article noted in the Sept. 3, 2015 edition of News Picks. 

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