2nd honker
Oct. 31, 2017
News Picks from NYSDA Staff

News Picks
Fourth Department Reverses Family Court's Premature Adoption of Referee Findings. The Fourth Department held that the Erie County Family Court violated CPLR 4403 by immediately confirming a court attorney referee's report on a father's petition for custody and/or visitation, instead of allowing the father a 15-day period to confirm or reject the report. Matter of McDuffie v Reddick , 2017 NY Slip Op 07055 (4th Dept 10/6/2017). The family court had referred the father's petition to a court attorney referee "to hear and report," pursuant to CPLR 4212. The Fourth Department found that, by participating in the proceeding before the referee without objection, the father waived his claim that the court erred in referring the matter in the absence of exceptional circumstances. It also rejected the father's argument that the reference order did not comply with the requirements of 22 NYCRR 202.43(d), concluding that, with only one exception (not applicable to this matter), "the provisions of 22 NYCRR part 202 apply only to 'civil actions and proceedings in the Supreme Court and County Court,' not to proceedings in the Family Court ...." The matter was remitted to the family court to give the parties and the Attorney for the Child an opportunity to file any appropriate motions pursuant to CPLR 4403. 

Comments Sought on Proposal to Amend Non-discrimination Rules of the Unified Court System. The New York State Administrative Board of the Courts is seeking public comment on a proposal to amend various rules of the Unified Court System (UCS) to prohibit discrimination based on "gender identity" and "gender expression." The proposal seeks to amend the following rules: Attorney Rules of Professional Conduct (22 NYCRR Part 1200), Rules of Judicial Conduct (22 NYCRR Part 100), UCS Code of Ethics for Nonjudicial Employees (22 NYCRR Part 50), and Rules of the Chief Judge, Career Service (22 NYCRR Part 25). The Request for Public Comment includes the relevant rules, as well as a memorandum by the Chief Administrative Judge of the New York State Courts, Hon. Lawrence Marks, which states that the current UCS non-discrimination policies are "not inclusive of all the members of the LGBTQ communities," and "[e]xtending these provisions to include 'gender identity' and 'gender expression' will aid in the public efforts to institutionalize the Judiciary's commitment to eradicating discrimination and bias against all persons regardless of their sexual orientation, gender identity, or gender expression." Persons wishing to comment on the proposed amendments should e-mail their submissions to rulecomments@nycourts.gov or write to: John W. McConnell, Esq., Counsel, Office of Court Administration, 25 Beaver Street, 11th Fl., New York, New York 10004. Comments must be received no later than Feb. 2, 2018

CCRC Releases 50-State Guide to Expungement and Restoration of Rights. The Collateral Consequences Resource Center (CCRC) recently released Forgiving and Forgetting in American Justice: A 50-State Guide to Expungement and Restoration of Rights. The report, which is available for download here , "catalogues and analyzes the various provisions for relief from the collateral consequences of a criminal conviction that are now operating in each state," and is intended to trigger a national dialogue about how people with criminal convictions regain legal rights and social status. It covers six types and characteristics of relief: executive pardon, judicial record-closing authorities, deferred adjudication, certificates of relief, fair employment & licensing laws, and loss & restoration of voting rights. It also includes two appendices comparing the "expungement, sealing & set-aside authorities" and the "laws limiting consideration of criminal records in employment and licensing" of all 50 states. The full analysis of New York Restoration of Rights, Pardon, Expungement & Sealing, compiled by CCRC's Restoration of Rights Project , is available here .

11th Edition of A Jailhouse Lawyer's Manual Available. A Jailhouse Lawyer's Manual (JLM), Eleventh Edition (2017), written and updated by members of the Columbia Human Rights Law Review, is available now. The JLM contains "basic self-help litigation information, including information on conducting legal research, seeking legal representation, choosing a court, and filing a lawsuit." It also offers chapters on: Freedom of Information; Appealing Your Conviction or Sentence; Inmate Grievance Procedures; Parole; Rights of Incarcerated Parents; and other important topics. While PDF documents of the current edition can be accessed here , the publisher kindly asks those who access the resource frequently, and can afford to purchase a hard copy, to do so. The JLM Eleventh Edition main volume is $140 for non-inmates, organizations, or institutions, and $30 for prisoners. The order form is available here

Association News
New Issue of NYSDA's Backup Center REPORT Now Available.  The July-Oct 2017 issue of NYSDA's Public Defense Backup Center REPORT is now available on the NYSDA website. Don't miss the brief practice hint included in the coverage of bail issues on p. 5--a strong argument that city, town, and village justices who interpret CPL 530.20(2)(a) to mean that they cannot set bail for any defendant who has two previous felony convictions are wrong. As always, the issue contains new developments in substantive and procedural law relevant to public defense lawyers and their clients. This issue also covers awards to public defense luminaries at NYSDA's conference in July, and the 2016 Legislative Review. NYSDA members will receive a hard copy of the latest issue in the upcoming weeks. If you have any questions, please contact the Backup Center at 518-465-3524.

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