2nd honker
Oct. 6, 2015
News Picks from NYSDA Staff
News Picks
Second Circuit Rules State Court's Summary Denial of 440 Claim of Ineffective Assistance of Counsel Improper. The Second Circuit ruled recently in a New York case that a post-conviction claim of ineffective assistance of counsel at the plea negotiation stage based on matters not clearly presented on the record may require an evidentiary hearing. The court found, in Fulton v Graham (14-1861-pr, 2015 US App LEXIS 16153 [2nd Cir 9/11/2015]), that the state court erred in strictly applying the procedural rule articulated in CPL 440.10(2)(c), which requires summary denial of a post-conviction motion where sufficient facts appear on the record to permit review on direct appeal.
Petitioner Derrick Fulton sought to vacate a conviction after trial for burglary and robbery that resulted in an aggregate sentence of over forty years. He asserted that a plea offer of ten years had been rejected because his lawyer had failed to adequately review with him the strengths and weaknesses of his case and appropriately guide him throughout the plea process.
Applying guidelines set forth in Cotto v Herbert (331 F3d 217, 240 [2nd Cir 2003]), the Fulton court considered "whether state caselaw indicated that compliance with the rule was demanded in the specific circumstances presented" and found exceptional circumstances that supported not requiring strict compliance. Specifically, the Second Circuit determined that New York courts do not ordinarily apply 440.10(2)(c) to bar claims of ineffective assistance based on out-of-court conversations between a defendant and his counsel. "Indeed, our review of state court authority suggests the opposite: state courts ordinarily demand that such ineffective assistance claims be brought in collateral proceedings, rather than on direct appeal." The court concluded that Fulton's petition raised sufficient questions regarding the adequacy of defense counsel's advice in relation to the plea offer that was not clear from the available record and found that relying on the 440.10 bar was an "exorbitant application" of a state rule.
The Second Circuit remanded the matter, noting that if Fulton's assertions were ultimately borne out by off-the-record evidence, they may be sufficient to establish an unreasonable performance by defense counsel during the plea process. The inordinate sentencing differential, the court found, was "substantial enough to warrant further factual development."
The case highlights the difficulty that convicted individuals and their lawyers may face in determining whether potential claims should be raised on direct appeal or in a 440 motion. Public defense lawyers representing convicted clients should not be distracted from the client's legal needs by questions of whether filing a 440 motion is part of counsel's appointment. The Appellate Standards and Best Practices adopted by the Indigent Legal Services (ILS) Office (eff. Jan. 5, 2015), as reported in the January 15 edition of News Picks, say that counsel must determine whether an investigation into possible 440 issues is warranted. If filing a 440 motion is called for, "counsel must file it, seek permission to appeal from the denial of such a motion, and represent the client if leave is granted to defendant or to the prosecutor." (Standard XX.) ILS recognizes that compensation for pursuing post-conviction remedies is an issue; the Commentary states that "Counties must provide adequate funding for counsel to pursue these motions."

Southern District Judge Finds Questioning of Child at School Unconstitutional. On Aug. 19, 2015, Southern District of New York Judge Sidney H. Stein read from the bench his opinion in this 1983 action brought by the plaintiff parents after the Orange County Child Protective Services (CPS) and law enforcement, in response to an allegation that the father sexually abused his then-five-year-old daughter, interrogated the child in an administrative office at her school, behind closed doors and without allowing her to call her parents or telling her she could leave or decline to answer the questions. While the Second Circuit has held that CPS workers could not remove a child from her school to a hospital for a medical examination without a warrant or parental consent (see Tenenbaum v Williams, 193 F3d 581 [2nd Cir 1999]), it has not directly addressed whether an in-school interview of a child by CPS can constitute a seizure. But other courts, including the Seventh Circuit and lower courts in the Second Circuit, have held it can constitute a seizure. Judge Stein granted "summary judgment to the plaintiffs against the county on the seizure [of the child], because it was an unconstitutional seizure." Phillips v County of Orange, 10-cv-00239 (SDNY). The New York Law Journal has reported that the parties were expected to meet to engage in settlement negotiations and that Orange County was going to review its protocol based on the court's decision.
One issue the Phillips court did not resolve is whether the school district can be held liable for the seizure. The court found that "there is a material question of fact as to whether the school district was required to permit CPS to interview children without parental consent or notification," but noted that the school district did not cite any statute or regulation that imposes such a legal obligation. The U.S. Supreme Court had an opportunity to address this issue in Camreta v Greene, but the Court declined to do so, dismissing the case as moot. 563 US 692 (2011). Attorneys who are handling cases involving CPS interviews of children at school may find that the amicus briefs submitted in Camreta, including those from the National Association of Criminal Defense Lawyers, the New York University School of Law Family Defense Clinic, and The Legal Aid Society's Juvenile Rights Practice, offer helpful analysis and arguments.
While the informal presence of CPS investigators in schools is not unique to Orange County, a more formal arrangement became public less than two weeks after the decision in Phillips . Erie County Executive Mark Poloncarz announced that Child Protective Services investigative workers from the County Department of Social Services (DSS) will be assigned to area schools several days a week, "providing district staff faster access to child welfare expertise while streamlining and expediting the investigation process." Mr. Poloncarz said that "this new, first-of-its-kind partnership will open the door for communication between DSS staff and school personnel before a report is made and that communication will continue throughout the investigative process."
Justice Department Announces New Policy for Cell-Site Simulators Use. The U.S. Department of Justice recently issued the "Department of Justice Policy Guidance: Use of Cell-Site Simulator Technology." Under this policy guidance, "law enforcement agencies must now obtain a search warrant supported by probable cause and issued pursuant to Rule 41 of the Federal Rules of Criminal Procedure (or the applicable state equivalent), except" in two circumstances: 1) exigent circumstances under the Fourth Amendment; and 2) unspecified "exceptional circumstances" where the law does not require a warrant. The policy applies to all cases in which a component of the Justice Department, including the FBI, DEA, and U.S. Marshals Service, "use[s] cell-site simulators in support of other Federal agencies and/or State and Local law enforcement agencies."

The guidance provides information about the basics of cell-site simulators, including how they function and the information simulators can and cannot obtain; guidance on management controls and training on the use of simulators; and data collection, retention, and disposal, as well as internal reporting of "annual records reflecting ... the number of deployments at the request of other agencies; including State or Local law enforcement ...." Regarding the limitations on the type of information that Department's cell-site simulators do not collect:
[S]imulators ... must be configured as pen registers, and may not be used to collect the contents of any communication, in accordance with 18 U.S.C. § 3127(3). This includes any data contained on the phone itself: the simulator does not remotely capture emails, texts, contact lists, images or any other data from the phone. In addition, Department cell-site simulators do not provide subscriber account information (for example, an account holder's name, address, or telephone number).
As noted by the ACLU, "'the policy does not apply to other federal agencies or the many state and local police departments that have received federal funds to purchase these devices.'" Public defenders, legal organizations, and other privacy advocates around the country are seeking cell-site simulator records from state and local law enforcement, including in Sacramento County, CA, Baltimore, MD, and Indiana. As noted in News Picks issues from earlier this year, the New York Civil Liberties Union (NYCLU) received records from the State Police and the Erie County Sheriff's Office regarding the purchase and use of simulators; these records and a recent NYCLU memorandum regarding the warrant requirement for the use of Stingrays in New York are available on the NYCLU's Stingrays web page.
Updated DOCCS Facility Contacts. An updated list of DOCCS correctional facility contacts, including the names of superintendents, deputy superintendents, stewards, program administrators, and captains, is available here. Contact information for DOCCS administrative staff is available here. Directives containing information about each facility, including its security classification, criteria for placement, available programs, types of cells (single, dormitories, etc.), are available at www.doccs.ny.gov/Directives/facilities.html.
Association News
NYSDA Staff Attorney Presenting on Using Public Defense Standards at NLADA Annual Conference. NYSDA Staff Attorney Mardi Crawford, along with Risa Gerson and Angela O. Burton (NYS Office of Indigent Legal Services), Linda Gehron (Hiscock Legal Aid Society), and Timothy Murphy (Legal Aid Bureau of Buffalo), will be conducting a workshop entitled "Using Standards to Drive Quality Public Defense: Overcoming Fear, Moving Forward for Clients" at the National Legal Aid & Defender Association's 2015 annual conference in New Orleans. The workshop is scheduled for Saturday, Nov. 7, 2015. More information about the NLADA annual conference is available here

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