2nd honker
Nov. 14, 2017
News Picks from NYSDA Staff

News Picks
Beware "Timely" as Used in New Order Regarding Disclosure Obligations. A Nov. 8, 2017, Unified Court System (UCS) Press Release announced "new rules that will require judges presiding over criminal trials to issue an order notifying and reminding prosecutors and defense attorneys appearing before them of their professional responsibilities," with particular focus on prosecutors' Brady responsibilities. Attached to the release is the Administrative Order amending the Uniform Rules for Courts Exercising Criminal Jurisdiction adding sections 200.16 and 200.27, effective Jan. 1, 2018. The new sections read:
In all criminal actions on an indictment, prosecutor's information, information, or simplified information, where counsel for the defendant has provided the prosecutor with a written demand as specified under CPL 240.10(1) and 240.20, or where the prosecution has waived such demand, the court shall issue an order to prosecution and defense counsel that, inter alia, (1) confirms the prosecutor's disclosure obligations pursuant to Brady v. Maryland, 373 U.S. 83 (1963), Giglio v. United States, 405 U.S. 150 (1972), People v Geaslen, 54 N.Y.2d 510 (1981), and their progeny; and (2) confirms defense counsel's professional obligation to provide effective assistance of counsel and meet defendant's statutory notice obligations. The order shall be issued on the first scheduled court date, following demand, where both the prosecutor and defense counsel are present. The Chief Administrator of the Courts shall promulgate a model order for this purpose that the court may use as it deems appropriate.
The UCS press release notes that the new order "does not in any way change existing law." But, after stating that favorable information must be "timely disclosed in accordance with" federal and state constitutional standards and CPL article 240, the approved model order adds: "[d]isclosures are presumptively 'timely' if they are completed no later than 30 days before commencement of trial in a felony case and 15 days before commencement of trial in a misdemeanor case." Defense attorneys should consider urging trial courts to strike out the offending language about Brady disclosures being "presumptively timely" if made no later than 30 days before trial.

As NYSDA noted, following a Request for Public Comment on the order, the language in the model order "can actually countenance greater delay in disclosure, as it directly conflicts with the disclosure timing set forth in CPL article 240, which requires disclosure of some discovery--Brady material--within 15 days of the defense demand." Many others made the same point; all comments are available on the UCS website (NYSDA's comments begin on p. 23). T he model order is based on recommendations made by the New York State Justice Task Force in a report issued last February, which was included in the March 1 edition of News Picks.
Attorneys anticipating issues with implementation of the new directive are encouraged to contact the Backup Center.

Updates on UCS Website Include Raise the Age. The Unified Court System (UCS) website now includes information from the UCS Office for Justice Initiatives ( OJI ), which was created in July 2017. OJI incorporates "the pre-existing Access to Justice Program ," which includes a range of efforts from Court Help for pro se litigants to a variety of publications . OJI initiatives also include: " Child welfare, juvenile and adolescent justice initiatives, including implementation of recent legislation raising the age of criminal responsibility in New York State ...."
Information about Raise the Age (RTA) currently posted on the OJI site is limited to an outline of the new legislation and statements about the court system's commitment to: " developing a court model that produces sustained positive outcomes for New York's justice system involved youth"; working "in collaboration with state and local agencies, non-profit and child-serving organizations, and other stakeholders" to "promote necessary reforms and develop new strategies to establish a more efficient, and fair juvenile justice system"; and overseeing a UCS workgroup to implement the legislation. The site contains links to the Governor's RTA webpage and the RTA legislation .
NYSDA provided links to RTA information in the Sept. 26, 2017 edition of News Picks and included a "Preliminary Roadmap of the Raise the Age Law" CLE session at its Annual Conference in July. We will continue to update public defenders, offer training, and work with other stakeholders, including the NYS Office of Indigent Legal Services, to ensure that young people receive quality representation in all courts as RTA is implemented.
NYSDA, through Family Court Staff Attorney Lucy McCarthy, also participates in the federally-funded Child Welfare Court Improvement Project now lodged under the OJI umbrella.

LAC Webinar: Overcoming Employment Barriers for People with Criminal Records. The Legal Action Center will host a 2-hour free webinar that explains how New Yorkers with criminal records can improve their chances of finding employment. The webinar, Overcoming Employment Barriers for People with Criminal Records, will be held on Dec. 5 from 11 am to 1 pm. Participants can expect to learn how to: describe laws prohibiting discrimination based on criminal history, describe how to get and correct rap sheets, advise clients how to address criminal records when completing job applications, and more. To register for this program, click here . Please note, if you do not have an account with hivtrainingny.org, you will need to sign up for one prior to registering for this course.

Commission of Correction Proposes Rule Limiting Disciplinary Confinement in Local Jails. The State Commission of Correction (SCOC) has proposed a rule that would limit the use of administrative or disciplinary segregation in local correctional facilities. If the rule is adopted, jails would have to give inmates in administrative or disciplinary segregation the opportunity to leave their cells for at least four hours per day and, for individuals who are under 18 or are known to be pregnant, jails must allow them a minimum of four hours outside of their cells, "exclusive of entitled exercise periods." The rule would also restrict the facility's ability to deprive an inmate of "essential services" as a means of discipline. "Essential services" are defined as "any right, service, item or article guaranteed an inmate" by 9 NYCRR Parts 7000-7070, such as clothing, outdoor exercise, toiletries, books, bedding, and religious services. Additionally, the proposed rule requires the jail to record and regularly review certain decisions about segregation, the denial of an essential service, or the denial of the four-hour period, and some cases require reporting to the SCOC. More information about the proposed rule is available on the SCOC's website, scoc.ny.gov , and also in the Nov. 1, 2017 issue of the State Register (pp. 6-7).
The deadline for public comment on the proposed rule is Dec. 16, 2017. Comments should be mailed to Deborah Slack-Bean, Senior Attorney, NYS Commission of Correction, Alfred E. Smith State Office Building, 80 S. Swan Street, 12th Floor, Albany, NY 12210 or emailed to Deborah.Slack-Bean@scoc.ny.gov . If you submit comments to the proposed rule, please share a copy with the Backup Center by emailing Jacob Drum, NYSDA Staff Attorney, at jdrum@nysda.org

Court System Releases Report on Status, Reforms. The New York State Unified Court System recently released its 2016 annual report . The report provides an update on Chief Judge Janet DiFiore's "Excellence Initiative," the effort to streamline caseloads in the New York court system. The report includes a summary of the "standards and goals," including benchmarks of 90 days for misdemeanors and 180 days from indictment for felonies. The report also highlights the state's Access to Justice Program  (discussed above) and its own 2016 report on volunteer attorney activities, the Pro Bono Scholars Program , and efforts to support specialty courts, such as drug/DWI courts, human trafficking court, adolescent diversion parts, and mental health and veterans treatment courts. Also of interest is the section on caseload activity of the entire court system.

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