2nd honker
Nov. 30, 2015
News Picks from NYSDA Staff
News Picks
Latest Batch of Bill Signings Includes Laws on Ignition Interlocks, Surcharge and Fee Exemptions, and Unsealing Criminal Records. Governor Cuomo recently signed a number of bills, including several amending the CPL and Penal Law. Those bills include:  
  • L 2015, ch 440 (eff. 11/20/2015) - The bill amends Penal Law 65.15(2) to add the following regarding ignition interlock conditions after a declaration of probation or conditional discharge delinquency: 
Any order for the installation and maintenance of a functioning ignition interlock device imposed pursuant to [PL 60.21] shall remain in effect throughout the delinquency and the court may extend the period of such installation and maintenance by the period of the delinquency; provided, however, that the defendant shall get credit for any period where the device was installed and maintained during the delinquency.  
  • L 2015, ch 426 (eff. 11/20/2015; applies to convictions on or after 11/20 and convictions for which sentence has not been imposed prior to 11/20) - The bill amends CPL 420.35(2) to require a court to waive the DNA databank fee of sex trafficking victims. It also amends that subdivision to require a court to waive the mandatory surcharge, DNA databank fee, and crime victim assistance fee where the defendant is convicted of: (1) Penal Law 240.37 (loitering for the purpose of engaging in prostitution), provided the person was not convicted of loitering for patronizing a person for prostitution; (2) Penal Law 230.00 (prostitution); or (3) a violation where the conviction is in lieu of a plea to or conviction for 240.37 (provided there was no allegation of loitering for patronizing) or 230.00. 
  • L 2015, ch 449 (eff. 11/20/2015) - The bill amends CPL 160.50(1)(d) to allow a district court, city court, or NYC criminal court to unseal a criminal record it previously sealed, upon an ex parte motion of a law enforcement agency and a finding that justice requires that the records be made available to the agency. The bill makes a similar amendment to CPL 160.55(1)(d). Previously, all law enforcement applications had to be made to the superior court. 
Cuomo Signs Bill That Closes Severe Abuse "Loophole" for Non-Parent Caregivers. On Nov. 20, 2015, Governor Cuomo signed a bill that amends Family Court Act (FCA) 1051 to specifically allow family court judges to make a finding of severe or repeated abuse against a non-parent respondent in an FCA article 10 child abuse proceeding. L 2015, ch 492 (eff. 2/18/2016). The bill was introduced at the request of the Chief Administrative Judge upon the recommendation of the Family Court Advisory and Rules Committee.
As noted in the accompanying sponsor's memo, "several court decisions have held that enhanced findings of severe or repeated child abuse may only be made in an original child abuse proceeding under Article 10 of the Family Court Act against parents ...." For example, earlier this year, the Third Department reversed a severe abuse finding against the respondent, the boyfriend of the child's custodian, noting that "[a]lthough Family Court and petitioner articulated policy reasons that may support extending severe abuse to a nonparent who is legally responsible for a child's care, such an extension is for the Legislature." Matter of Tiarra D., 124 AD3d 973 (3rd Dept 1/8/2015). The bill closes the gap in the law by allowing such findings to be made against any person legally responsible for the child, such as the live-in partner of a biological parent.  
The bill also amends Executive Law 221-a to require that temporary and final orders of protection issued in FCA article 10 proceedings, and warrants pertaining to such orders of protection, be entered into the statewide automated registry of orders of protection.
Proposed Uniform Attorney Discipline Rules Released; Request for Public Comment. Earlier this month, the Office of Court Administration released proposed Uniform Rules of the Appellate Division on Attorney Discipline. Currently, each Department of the Appellate Division has its own rules governing attorney discipline (First Department- 22 NYCRR Parts 603, 605; Second Department- Part 691; Third Department- Part 806; and Fourth Department- Part 1022). The proposed rules, if approved, would replace those department rules. Comments on the proposed rules may be emailed to rulecomments@nycourts.gov or mailed to John W. McConnell, Esq., Counsel, Office of Court Administration, 25 Beaver Street, 11th Fl., New York, NY 10004, and must be received by 10:00 a.m. on Dec. 18, 2015.
More information about attorney discipline, including the differences between department rules, appears in the recently issued final report of the NYS Commission on Statewide Attorney Discipline.
The proposed rules do not include any specific provisions regarding discipline for prosecutorial misconduct, a topic briefly addressed in the Commission's final report and the subject of several legislative proposals, including a bill that would establish a State Commission on Prosecutorial Conduct ( S.24/A.1131).
New and Proposed Rules Regarding Grievances and Incidents in County Jails. The New York State Commission of Correction (SCOC), the agency responsible for oversight of state and local correctional facilities, has issued a new inmate grievance form for county jails that must be used starting Jan. 1, 2016. According to the Chairman's Memorandum, the new form is to be provided by local facilities to inmates seeking to file grievances and is intended to facilitate review and "provide inmate grievants, grievance coordinators and chief administrative officers instructions that specify timelines and submission requirements ...." The memo notes that while alternative forms may have been accepted in the past, the Commission "now insist[s] that local correctional facilities not amend or alter the provided grievance form, other than inserting the facility name, before issuing to an inmate grievant."
Practitioners wishing to familiarize themselves with the form for insight into the controlling rules and investigative process may find it on the Forms page of the SCOC website. Of interest is the form's reference to 9 NYCRR 7032.4, the rule governing facility inmate grievance programs.
On a related note, the November 10, 2015 issue of the State Register included a proposed rule from the SCOC regarding the way county jails and OCFS secure facilities report "significant correctional facility incidents." The Regulatory Impact Statement for the proposal reflects that SCOC will begin receiving such reports electronically and they will be maintained in a searchable format via the eJustice portal. Among other things, this will mean that "correctional facilities will have the ability to search an individual inmate's incident history in all adult correctional facilities statewide, providing valuable information to assist in the inmate's risk assessment and classification." The SCOC Reportable Incident Manual is available here.
Board of Parole Has New Counsel. Terrence X. Tracy, who has served as counsel to the Board of Parole for almost two decades, has been replaced by Kathleen Kiley. Ms. Kiley can be reached at the Board's office at 97 Central Avenue, Albany, NY 12206 or at (518) 473-9400. Mr. Tracy is now working in the NYS Department of Corrections and Community Supervision's Counsel's Office.
Association News
1st VDP Activities Report Available. Summarizing 18 months of work, the first Activities Report of the Veterans Defense Program (VDP) is now available. Since the spring of 2014, the VDP has provided comprehensive training for 600 lawyers who defend military veterans, legal assistance in over 100 cases involving veterans, and expert referrals and information for over 150 veterans. The new report includes information on the needs of veterans, VDP case studies, and more.
Because All Families Matter: Enhancing Parental Defense in New York Recap. We are proud to report a successful first-ever statewide conference for professionals who represent parents in state intervention matters. Over 180 participants gathered in Albany on November 13 and 14 for the conference, which was co-sponsored by NYSDA, the New York State Office of Indigent Legal Services, and the Child Welfare Court Improvement Project. Among other inspirational and respected presenters, attendees heard from representatives from the U.S. Department of Justice, NYU Law School Professor Marty Guggenheim, and the preeminent neuropsychopharmacology expert, Dr. Carl Hart.
In addition to CLE sessions and substantial materials distributed to support zealous advocacy, participants honored Mr. John Hand, the attorney who represented Ms. B in the Court of Appeals case (Matter of Ella B., 30 NY2d 352 [1972]) that led to the enactment of Family Court Act 262 in 1975. The Friday evening Ella B. reception also allowed for the formation of interagency and personal connections among those who work to protect families and improve outcomes for parents facing the bureaucracy of the child welfare system.
This endeavor was made possible by the planning efforts and generosity of parent representation providers from all over the state. With the support of all involved, the co-sponsors look forward to planning next year's event. Comments from attendees included, "This was a wonderful gathering of like-minded colleagues. Let's have more of these!" and "The conference was really helpful and powerful and I hope to attend another in the near future." Also, "This conference was excellent and much needed for the Family defense community."
2nd Public Defense Investigator Training. On Nov. 20, 2015, NYSDA's Public Defense Investigation Support Project in co-sponsorship with The Legal Aid Society held the 2nd Public Defense Investigator Training: Principles & Practice. The full-day training was held at and hosted by Debevoise & Plimpton LLP and was a huge success with 70 investigators attending from local, state, and federal Public Defender offices from Connecticut, Maryland, New Jersey, and throughout New York. Topics covered included interviewing people with mental health issues, understanding the law on reverse discovery, using your smart phone for investigations, investigating your client's military background, self-defense to murder, and police witnesses.
NYSDA at NLADA Conference: Client Coordinator/Client Advisory Board Chair Receives Recognition, Makes Presentation; Staff Attorney Also Presents . Jay Coleman, Backup Center Client Coordinator and Chair of NYSDA's Client Advisory Board, recently received a 2015 Client Contribution Award from TimeBanks USA and the Client Policy Group of the National Legal Aid and Defender Association (NLADA). The award, presented during NLADA's Annual Conference, recognized Jay's dedication and contributions as a Pioneer, Extraordinary Champion, and Community Builder in Advancing Social Justice.
As a presenter at a conference session on community activists for criminal defense clients, Coleman described NYSDA's pilot Prisoner Pre-entry Mentoring Project and discussed the Client-Centered Representation Standards adopted by the Client Advisory Board (and approved and endorsed by NYSDA's Board of Directors) in 2005.
Staff Attorney Mardi Crawford, with Risa Gerson and Angela Burton of the NYS Indigent Legal Services (ILS) Office, Timothy P. Murphy of the Appeals and Post-Conviction Unit of Legal Aid Bureau of Buffalo, and Linda Gehron of the Family Court Program of the Frank H. Hiscock Legal Aid Society (Syracuse) did a panel presentation on the creation and use of the ILS "Appellate Standards and Best Practices." Additional materials from this presentation and Coleman's are available from the Backup Center.
NYSDA at American Society of Criminology Annual Meeting. NYSDA Research Director Melissa Mackey attended the 71st Annual Meeting of the American Society of Criminology in Washington, DC, November 18-21. Melissa presented on "Using Case Management Systems to Assess Quality Representation" at a session on Research and Data in Legal Services for the Indigent. This year's panel topics included research on representing clients with mental illness; client communication and participatory defense; federal funding opportunities; early intervention of counsel; and caseload studies. This was the second year in a row that Andrew Davies, Research Director at the NYS ILS Office coordinated a series of panels centered on public defense representation.
Copyright © 2012-2015 New York State Defenders Association