2nd honker
Sept. 17, 2015
News Picks from NYSDA Staff
News Picks
NYSDA Releases New York Lesser Included Offenses Reference Guide. The NYSDA Public Defense Backup Center has created a New York Lesser Included Offenses reference guide. The guide sets out potential lesser included offenses for various Penal Law and Vehicle and Traffic Law offenses and provides excerpts from several key New York Court of Appeals decisions and a list of relevant Criminal Procedure Law sections. The guide will also appear in the upcoming issue of the REPORT. We would like to thank the Office of the Appellate Defender for its valuable contribution to this resource.

New Trial Ordered for Exclusion of Expert Testimony on False Confessions. Selwyn Days confessed to a double murder after being held in custody for fourteen hours. The police videotaped only the last 75 minutes of the seven-hour interrogation. At his fourth trial (two trials had resulted in hung juries and a previous conviction had been vacated due to ineffective assistance of counsel), Days attempted to call two experts on the phenomenon of false confessions, psychologists Dr. Jessica Pearson and Dr. Richard A. Leo. But the trial court summarily rejected the proffered expert testimony on the ground that the subject of false confessions is "within the understanding of an average juror." Earlier this month, the Appellate Division reversed and ordered a fifth trial. People v Days, 2015 NY Slip Op 06731 (2nd Dept 9/2/2015). Citing People v Bedessie (19 NY3d 147 [2012]), the Appellate Division stressed that expert testimony on false confessions is not within the ken of the average juror and is admissible in appropriate circumstances. Here, the facts suggested that Days had "intellectual deficits and personality traits that rendered him vulnerable to giving a false confession, especially where ... the police posed a number of suggestive or leading questions, the interrogation was particularly long, and the police used rapport building techniques to gain the defendant's trust," and there was "little evidence to corroborate" the confession.

New Report on Sex Offenders with Intellectual/Developmental Disabilities. The National Center on Criminal Justice and Disability, part of The Arc, a national organization for people with intellectual and developmental disabilities (I/DD), has issued a new report, "Sex Offenders with Intellectual/Developmental Disabilities: A Call to Action for the Criminal Justice Community." The report addresses various issues that arise when a person with I/DD is accused of committing a sex offense, such as understanding how the person's disability influences behavior, using risk assessments that are appropriate for persons with I/DD, understanding the benefits and dangers of psychosexual evaluations, and educating families about how to work with criminal defense lawyers. Elizabeth Kelley, a criminal defense lawyer specializing in representing individuals with mental illnesses and developmental disabilities and a National Association of Criminal Defense Lawyers Board Member, authored the guide for families on working with criminal defense lawyers. A webinar about the report is also available, including the presentation video and slides, as well as a transcript.

Other resources available from The Arc's National Center on Criminal Justice & Disability include:  

Second Department Suspends Child Support Obligation Based on a "Pattern of Alienation." In a Westchester County Family Court proceeding, a father petitioned to enforce his visitation rights or, in the alternative, to suspend his child support obligation. After a hearing, the family court denied the father's petition and granted the mother's cross-petition to modify the prior order of custody and visitation "so as to suspend the father's visitation with the subject child."

The Second Department modified, holding that "the evidence adduced at the hearing justified a suspension of the father's obligation to make future child support payments ...." Matter of Coull v Rottman, 2015 NY Slip Op 06723 (2nd Dept 9/2/2015). "The forensic evaluator testified that there was a 'pattern of alienation' resulting from the mother's interference with a regular schedule of visitation." The evaluator was not able to complete the report because the mother refused to allow the evaluator access to mental health providers and school officials and did not produce the child for an interview. Further, the mother had not transported the child to the visit exchange location, with one exception, since 2010 and had not informed the father of school events or a hospitalization of the child. The family court "even noted in its decision that the mother stated 'many times, that she will never allow [the father] to see the subject child and that she would do whatever it takes to keep the subject child away' from him." The Appellate Division, however, affirmed the modification of the visitation order, concluding that "[t]he court's finding that further attempts to compel the child, who was then 13 years old, to engage in visitation would be detrimental to the child's emotional well being has a sound and substantial basis in the record ...."

Updated Guide on the Impact of Mellouli v Lynch on Controlled Substances Cases for Immigrant Clients. The Immigrant Defense Project (IDP) has updated "A Guide for New York State Criminal Defense Attorneys: How Mellouli v. Lynch Impacts Controlled Substances Cases for Your Immigrant Clients." As the guide notes, the U.S. Supreme Court in Mellouli (133 S Ct 1980 [2015]) "held that where the government seeks to deport an immigrant for a drug paraphernalia conviction, the government must tie the conviction to a substance listed on the federal controlled substance schedules." The original guide was included in the July 31, 2015 issue of News Picks.

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