2nd honker
Nov. 30, 2017
News Picks from NYSDA Staff

News Picks
Third Department Clarifies Sentencing Issue for Ignition Interlock Violations. Penal Law 60.21 requires sentencing courts to impose a consecutive term of probation or conditional discharge to any term of imprisonment imposed under Penal Law article 70 for DWI and aggravated DWI convictions. The probation or conditional discharge is intended to facilitate enforcement of the mandatory ignition interlock requirement following release from confinement. But what are a court's sentencing options for violations of probation or conditional discharge under the law?
In People v Coon, the defendant was sentenced to 1 year for felony DWI and a consecutive conditional discharge to facilitate the interlock requirement. He violated the interlock mandate and was then sentenced to 2 - 6 years in state prison for the conditional discharge violation. The Third Department recently held the court lacked authority to sentence the defendant to prison under these circumstances because the original one-year irrevocable term was fully served. "[W]e cannot sanction nor can we countenance a term of imprisonment when no sentencing statute specifically permits such result for an individual who has already served a definite irrevocable sentence and subsequently violates the terms of a conditional discharge that ran consecutively to that sentence." Presumably, the court's analysis would apply to fully served indeterminate sentences with consecutive conditional discharges or periods of probation. The court noted that violators could be separately prosecuted for the Class A misdemeanor of operating a motor vehicle without a required interlock device (VTL 1198 [9][d] and [e]).

Court of Appeals Reverses Fourth Department on Continuing Jurisdiction Once an FCA Article 10 Proceeding is Dismissed. In a unanimous decision, the Court of Appeals found that where a Family Court Act (FCA) article 10 proceeding does not survive a merits determination, the Family Court no longer has jurisdiction to retain a child in foster care under FCA article 10-A. Matter of Jamie J., 2017 NY Slip Op 08161 (11/20/2017). The Wayne County Department of Social Services (DSS) removed an infant and placed the child in foster care under FCA 1022. Before a merits hearing on the neglect petition, the Family Court commenced a permanency hearing pursuant to FCA article 10-A ("Permanency Hearings for Children Placed Out of Their Homes") and issued a permanency order that continued the child in foster care. The neglect proceeding finally went to trial, DSS failed to prove the merits, and the Family Court dismissed the petition. But the Family Court concluded that the permanency hearing afforded it jurisdiction to continue custody with DSS. "Family Court and the Department contended that, even though the Department had failed to prove any legal basis to remove Jamie J. from her mother, article 10-A of the FCA gave Family Court continuing jurisdiction over Jamie J. and entitled it to continue her placement in foster care." On appeal, the Fourth Department affirmed with two judges dissenting.
The Court of Appeals reversed:
the Department seizes on a hyperliteral reading of section 1088, divorced from all context, to argue that Family Court's pre-petition placement of Jamie J. under section 1022 triggered a continuing grant of jurisdiction that survives the eventual dismissal of the neglect petition. In other words, even if the Family Court removes a child who has not been neglected or abused, it has jurisdiction to continue that child's placement in foster care until and unless it decides otherwise.
"Section 1088 and article 10-A must be construed not in isolation, but (as the '-A' implies) together with the other provisions of the FCA on which their triggering facially depends." The Court agreed with the dissenting Appellate Division justices that "adopting the Department's interpretation of section 1088 would permit a temporary order issued in an ex parte proceeding to provide an end-run around" the heightened protections for children and parents found in FCA article 10, because permanency hearing determinations are not based on the FCA article 10 imminent risk of harm standard, "but 'in accordance with the best interests and safety of the child' under article 10-A (FCA § 1089 [d]." The Court vacated the permanency order.
Of particular note is footnote 3 of the Court's decision:
The Department's interpretation would create a further anomaly: according to the Department, Family Court's continuing jurisdiction under article 10-A turns on the fortuity of whether the neglect petition is adjudicated before or after the statutorily required first permanency hearing. Under that interpretation, Family Court has continuing jurisdiction here only because it failed to hold the fact-finding hearing for more than a year after removal; had it held that hearing during the first seven months following Jamie J.'s removal, the Department concedes no continuing jurisdiction would exist under its interpretation of section 1088. Having the court's jurisdiction and a family's welfare turn on the vagaries of a court's congested calendar would be not only arbitrary and unlikely to comport with legislative intent, but also out of step with our precedents ....

Podcast on Statewide Family Visiting Policy for Children in Foster Care. NYSDA is pleased to announce the first-ever New York State Parent Attorney Perspectives podcast: Podcast #1: Statewide Family Visiting Policy for Children in Foster Care, 17-OCFS-ADM-14. A collaborative effort between the New York State Office of Indigent Legal Services (ILS) and NYSDA, it features special guest Adele Fine, Esq., Family Court Bureau Chief of the Monroe County Public Defender's Office. Podcast #1 explores the Administrative Directive from NYS Office of Children and Family Services that institutes a new approach to contact between families and children in substitute care. Immediate tips for practice are discussed. Also highlighted is the opportunity to be involved as local departments of social services craft written policies (to be completed by Jan. 3, 2018) in accordance to the directive.
This podcast can be accessed from the ILS website (on the right-hand side under "Announcements") and on NYSDA's Family Defense Resources page (scroll down to "Links of Interest"). More information about the new directive is available in the Oct. 23, 2017 edition of News Picks.

Consider Urging Courts to Issue an Alternative Order Concerning the Prosecution's Disclosure Obligations. The model order concerning disclosure and notice obligations recently approved by the Administrative Board of the Courts (see the Nov. 14 issue of News Picks) misstates the law concerning the timeliness of Brady disclosures. The model order states that "disclosure is presumptively timely if the prosecutor shall have completed it no later than 30 days before commencement of a trial in a felony case and 15 days before commencement of a trial in a misdemeanor case." As pointed out by numerous organizations during the public comment period, there is no authority for the proposition that otherwise delayed Brady disclosures are "presumptively timely" if disclosed within these time frames. Under the newly adopted rule of the Chief Administrative Judge (22 NYCRR 200.16/200.27), courts must issue an order concerning the prosecution's disclosure obligations. But use of the model form order is discretionary. As stated in the November 8th press release, "While the Chief Judge's Administrative Order does not mandate the issuance of any specific directive, a model order has been approved for use."
Defense attorneys should strongly consider urging trial courts to issue this alternative order, which strikes out the misstatement of law contained in the model order. 

Deferral of Mandatory Fees after Jones, Shock Incarceration for Controlled Substance Offenses. In the October 2017 edition of Issues to Develop at Trial, the Center for Appellate Litigation (CAL) addresses the difficulty of obtaining deferrals for mandatory surcharges for clients who have been sentenced to longer than 60 days' imprisonment after  People v Jones (26 NY3d 730 [2016]). In holding that defendants fac ing more than 60 days' imprisonment are not eligible for deferral when their sentence is imposed, CAL argues that   Jones effectively places the onus on defense counsel at sentencing to move for a  re -sentencing immediately upon imposition to defer surcharges and fees, building off of Justice Daniel Conviser's opinion in  People v Tookes  (52 Misc3d 956 [Supreme Ct, New York Co 2016]). If granted, the deferred fees would be treated as a civil judgment. While noting that such a resentencing motion could be useful in plea negotiations, CAL concedes that Jones  "has made the landscape for deferring mandatory surcharges a bit more bleak," but encourages defenders to fight the issue when their clients are unable to pay. "While you should manage your client's expectations given the state of the law--and alert him that re-entering society with a civil judgment is not that great either," CAL writes, "their request may find traction with a sympathetic court loathe to give up its discretion in this area."
Also in the October edition, CAL reminds defenders that, upon a defense motion, the sentencing court has authority to sentence a defendant convicted of a controlled substance or marijuana offense to shock incarceration under PL 60.04(7)(a), if the individual meets the eligibility requirements in that section. This authority is in contrast to the sentencing court's ability to recommend such a sentence via the procedures set forth in Correction Law 867. If the client is sentenced to shock under 60.04(7)(a), practitioners are reminded to "make sure the clerk checks the correct box on the Sentence and Commitment sheet, or remind the clerk to do so," lest DOCCS misconstrue the notation as a mere recommendation. Prior editions of Issues to Develop at Trial are available at www.appellate-litigation.org/issues-to-develop-at-trial. Thank you to CAL for making this valuable publication available to the public defense community. 

Association News
Save the Date! Families Matter: Enhancing Parental Representation in New York, April 20-21, 2018. The 2018 Family Matters conference will be held in Albany April 20-21. Save the date and book your hotel room now. The conference rate at the Hilton Garden Inn (Albany Medical Center) is $125 until March 2, 2018. Call 1-877-782-9444 with the special code "NYSDA." Conference details and registration will be available in early 2018. If you have questions, please contact Lucy McCarthy or Angela Burton:
Lucy J. McCarthy
Family Court Staff Attorney
New York State Defenders Association
518-465-3524, ext. 24
Angela Olivia Burton
Director of Quality Enhancement, Parent Representation
New York State Office of Indigent Legal Services

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