2nd honker
Oct. 28, 2016
News Picks from NYSDA Staff
News Picks
Courts Lack Authority to Order Defendants to Pay Costs of SCRAM Alcohol Monitoring Device. A SCRAM (Secure Continuous Remote Alcohol Monitoring) ankle bracelet is a transdermal alcohol monitoring device available through four New York dealerships . Sentenced to probation on a felony DWI conviction in Sullivan County, Brian Hakes was ordered to wear a SCRAM bracelet and pay installation costs and maintenance fees to Rocky Mountain Offender Management Systems. He made two monthly payments to the Brooklyn-based SCRAM dealership but the bracelet was removed when Hakes reported he was unable to continue payments. According to SCRAM Systems, the average monitoring costs are $10 - $12 per day. Hakes was charged with violating the terms and conditions of probation, found guilty, and sentenced to state prison. On appeal, Hakes argued his right to due process was violated because he could not afford the device and had made good faith efforts to pay. The Appellate Division reversed on a broader ground, holding that the sentencing court lacked statutory authority to order Hakes to pay the costs of the monitoring device. People v Hakes , 2016 NY Slip Op 06905 (3rd Dept 10/20/2016).
While County Court can require a defendant to submit to the use of an electronic monitoring device if it determines that such a condition would advance public safety (see Penal Law § 65.10 [4]), it could not require a defendant to pay the costs associated with such monitoring since such costs do not fall within the category of restitution, but are more in the nature of a law enforcement expense ....
Because the sentence condition was illegal, it was of no moment that Hakes had agreed to pay, and "had never applied for resentencing (see CPL 420.10 [5] [d]), or requested a modification of the conditions of his probation (see CPL 410.20 [1])."

DOJ and HHS Issue Guidance Letter Addressing Title VI of the Civil Rights Act in Relation to Child Welfare. Building on the U.S. Department of Justice (DOJ) and U.S. Department of Health and Human Services's (HHS) guidance last year on how the Americans with Disabilities Act and Section 504 of the Rehabilitation Act should influence child welfare decision-making, the agencies have issued a new guidance letter on how child welfare systems must address discrimination under Title VI of the Civil Rights Act. The Director of the HHS Office for Civil Rights, Jocelyn Samuels, announced in a press release : "This joint guidance is another step in the right direction to remedy discriminatory practices in child welfare activities ...." Title VI applies to all programs and activities of federally-funded child welfare agencies and state court systems, as well as private and non-profit agencies that have contracts with such agencies and systems to provide services to children and families. And it "protects all children, parents, grandparents, caregivers, foster and adoptive parents, kinship guardians, and individuals seeking to become foster or adoptive parents who interact with federally funded recipients."
Practitioners should note that the letter addresses "unconscious bias" and lists both intentional discrimination and disparate impact discrimination as consequences of a failure to address unfair practices in child welfare systems. 

Court of Appeals Advises Defenders: Carefully Preserve Motion Claims. The question raised in People v Allard (2016 Slip Op 06853 [10/20/2016]) was whether the defendant sufficiently preserved a CPL 30.30 issue to obtain appellate review. The defendant challenged the validity of a second indictment on speedy trial grounds and the prosecution claimed extraordinary circumstances arising from the unavailability of a needed grand jury witness. The defendant did not file a reply "identifying any 'legal or factual impediments' to the [prosecution's] proffered exclusions," but had requested a hearing on the factual disputes raised in the primary pleadings. The trial court summarily denied the defendant's motion. The Appellate Division remitted for a hearing on the motion. The trial court found that the prosecution failed to demonstrate due diligence in pursuing the criminal action in a timely manner. The Appellate Division agreed and granted the defendant's motion to dismiss. The prosecution appealed to the Court of Appeals, not challenging the merits of the speedy trial motion, but contending that the defendant's claim was not properly preserved because the defendant did not file a reply. The Court of Appeals ruled that its prior decisions on preservation do not mandate such a stringent interpretation. The Court noted that because the prosecution's opposition failed to conclusively refute the defendant's motion by unquestionable documentary proof, the defendant was entitled to the requested hearing. CPL 210.45(5)(c). It concluded that "a defendant's failure to reply is not fatal to his claim where, as here, the defendant properly requests and receives a hearing and, at that hearing, his arguments are raised and developed ...."
This decision should not be taken as a signal of the relaxing of preservation requirements. The Court of Appeals closed with an important caveat for all defenders:
In the absence of a hearing, a defendant's substantive CPL 30.30 arguments will be unpreserved where the defendant failed to otherwise raise them, for instance, "in his initial submission or in a reply" .... Accordingly, a defendant would be well advised to raise any CPL 30.30 arguments in a reply so as to ensure their preservation. For instance, where a defendant mistakenly believes that the [prosecution] failed to "conclusively refute[]" his motion (CPL 210.45[5][c]) - and therefore opts not to reply - the defendant risks summary denial of his motion, leaving him with an unsuccessful and unpreserved claim.

Third Department No Longer Mailing Opinions to Attorneys and Some Defendants. Appellate counsel and many appellants will no longer receive paper copies of appellate decisions in criminal cases in the Third Department, according to a recent memo. Joseph Rotello, principal appellate court attorney for the Third Department, informed the Backup Center that the court will continue to send hard copies of decisions to all pro se appellants and all appellants represented by counsel who file a pro se supplemental brief. Electronic access to decisions is available through the calendar on the Department's website, and through the New York Official Reports website all motion decisions will continue to be mailed to all parties. 
The First and Fourth Departments continue to provide defense counsel with paper copies of their opinions. 

Association News
Latest Staff Attorneys Now Providing Direct Defender Services. Two lawyers who joined the Backup Center staff this year have begun taking direct defender services requests with the assistance of more experienced legal staff. Ziadanne Lewis's experience includes intern and extern rotations in a Michigan public defender office and the Toronto Crown Attorney's office; Jacob Drum completed a fellowship at the Federal Public Defender Office for the Western District of New York. Further biographic information is available on the staff list at www.nysda.org . Please welcome Ziadanne and Jacob when they take your call or respond to your email or web request for assistance.

VDP's Art Cody Receives Four Chaplains Award. The Deputy Director of NYSDA's Veterans Defense Program (VDP), Captain Art C. Cody, USN (Retired), received the Four Chaplains Legion of Honor Humanitarian Award on Oct. 12, 2016. As described on the Four Chaplains website , the award recognizes a "lifetime commitment to selfless service and societal advancement that has demonstrably affected the quality of life in the community, state or nation, service without regard to faith or race." A photo taken during the award presentation at the Stratton VA Medical Center in Albany appeared in the Albany Times Union. Congratulations, Art!

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