2nd honker
Nov. 17, 2016
News Picks from NYSDA Staff
News Picks
2016 Edition of Speedy Trial Manual Now Available. Drew R. DuBrin, Special Assistant Public Defender in Monroe County, has released the 2016 edition of his Criminal Procedure Law Section 30.30(1) Manual. The manual examines the various provisions of New York's speedy trial statute, from when a criminal action commences to the announcement of readiness, excludable time, waivers, post-readiness delay, and speedy trial motions. We are grateful to Drew for sharing this valuable resource with readers of News Picks.
Speedy Trial Motions Post-Allard. In the last issue of News Picks, we discussed last month's Court of Appeals decision on statutory speedy trial motions and preservation for appeal. People v Allard , 2016 NY Slip Op 06853 (10/20/2016). The Center for Appellate Litigation's November 2016 edition of Issues to Develop at Trial reviews the Allard decision and provides practice tips on incorporating the decision into speedy trial motions. Prior editions of Issues to Develop at Trial are available at www.appellate-litigation.org/issues-to-develop-at-trial .
Dilatory Effort to Obtain a DNA Swab Results in 30.30 Dismissal. Agreeing with the Second Department, the Court of Appeals found recently that a defendant's motion to dismiss his indictment on CPL 30.30 grounds should have been granted where the prosecution failed to exercise due diligence in seeking a DNA exemplar from the defendant, which it did almost nine months after the indictment. A medical examiner's report dated about six months before the indictment had noted the presence of DNA on the gun upon which the weapons possession and related charges were based. That the medical examiner did not affirmatively notify the prosecution of the DNA, or of technology available for testing the sample, did not qualify as exceptional circumstances justifying the delay. The 161-day-delay between taking the swab and producing a report of the results was therefore chargeable to the prosecution. People v Clarke , 2016 NY Slip Op 06939 (10/25/2016).
Statutory speedy trial issues offer relief to clients in large and small jurisdictions alike. An Oct. 27, 2016 article in the New York Law Journal noted a trial judge's criticism of the Bronx District Attorney's Office for cavalier filing of "illusory" off-calendar statements of readiness for trial involving an unreliable witness's availability. People v Reyes , 53 Misc 3d 1207(A) (Criminal Ct, Bronx Co 10/14/2016). And the Fourth Department recently reversed a conviction from Cayuga County under 30.30 because the prosecution there had delayed presenting a case to the grand jury for over five months after defense counsel requested an opportunity to discuss plea dispositions before presentment. That letter did not constitute a waiver of statutory speedy trial, which must be unambiguous and explicit, the court said in People v Leubner  (2016 NY Slip Op 06569 [4th Dept 10/7/2016]).
New Edition of the Trial Manual for the Defense of Criminal Cases Released. The sixth edition of the Trial Manual for the Defense of Criminal Cases has been released and is free to download. As noted by authors Anthony G. Amsterdam and Randy A. Hertz of NYU Law School, the Trial Manual "covers information a defense attorney has to know, and the strategic factors s/he should consider, at each of the stages of the criminal trial process. It is organized for easy access by practitioners who need ideas and information quickly in order to jump-start their work at any given stage."

The fifth edition of the Trial Manual, published in 1988, was a joint project of the American College of Trial Lawyers, National Defender Project of the National Legal Aid and Defender Association, and the ALI-ABA Committee on Continuing Professional Education.
November 20 Deadline for Comments on NY's Request to Use Medicaid to Help Individuals Transition from Incarceration. The federal government is seeking public comments on New York's request to use Medicaid services during the last 30 days of incarceration. The Legal Action Center (LAC) is trying to get as many comments as possible (from around the country) submitted before the deadline, which is the end of this week (Sunday, November 20 at 11AM). We urge you to submit comments, as this waiver will significantly increase incarcerated individuals' chances to successfully transition into the community. Comments should be submitted on the Medicaid website at https://public.medicaid.gov/connect.ti/public.comments/view?objectId=1888355 . LAC's comments (available here) may be used as a template and commenters are free to adopt the LAC language "more or less wholesale." Below is a list of points to explain the purposes of the waiver.
  • New York is seeking federal approval to become the first state in the nation to use Medicaid to pay for certain services that would help individuals transition from incarceration back to the community.  
  • Incarcerated individuals would be connected to treatment, medication support and intensive care coordination prior to release, instituting a continuum of care and thereby improving their health.
  • Using Medicaid to help people as they leave jails and prison would be a huge step in transforming the criminal justice system from a punishment to a treatment-focused model.
  • Disruptions in medical care upon reentry lead to poor and costly health outcomes, such as increased drug use and re-incarceration, including a 12-fold rise in the risk of death in the first two weeks post-release.
  • Providing the needed array of transitional services would significantly increase the chances of a successful reentry into the community.
NHTSA SFST and DRE Manuals and Guides Available Online. When handling a DWI or DWAI Drug case, having access to and being familiar with the National Highway Traffic Safety Administration (NHTSA) training manuals and guides can be critical for impeaching an officer who conducted the Standardized Field Sobriety Tests (SFSTs) or a Drug Recognition Expert (DRE). Links to PDFs of these materials and other related training materials are available under the Breath Test Program section of the Washington State Patrol website.
A list of New York State DRE officers (dated Jan. 6, 2016) is available on the DRE page of the Governor's Traffic Safety Committee (GTSC) website. Since January, 21 additional officers have been certified; a list of those officers is available in an Oct. 13, 2016 DMV press release . DREs in New York have access to a tablet application that "captures all the data required for a Drug Influence Evaluation, and more." An article about the app noted that the app has an electronic version of a face sheet and it "validates the data, generates PDF evaluation documents, and uploads all data, including drawings, to a database." Users can search the database for a variety of information, including "how the DRE's opinion on the category of drugs compares to the toxicology report," "what age groups are most likely to be impaired by what categories of drugs," and "what drugs are most commonly identified in toxicology reports." The New York data is also sent to the NHTSA National DRE Tracking System .

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