2nd honker
Sept. 26, 2017
News Picks from NYSDA Staff

News Picks
Governor Signs Bill to Fix Justice Court Appeals Problem. Governor Cuomo signed legislation on Aug. 21, 2017 to address a flaw in the procedure governing perfection of appeals from justice courts. L 2017, ch 195 . Although proceedings in these courts are electronically recorded, the Court of Appeals has held the recordings are not the functional equivalent of a stenographic record and that CPL 460.10(3) still requires appellate counsel to prepare and file an affidavit of errors. People v Smith , 27 NY3d 643 (2016). The problem is that the affidavit of errors must be filed no more than 60 days after judgment is entered, too short a time frame for the recording to be transcribed and used by appellate counsel to frame the issues on appeal. The new law modifies the statute to allow for effective and meaningful use of a transcribed recording. Under the amendment, the affidavit of errors must now be filed within 60 days of the date "the appellant receives a transcript of the electronically recorded proceedings." As stated in the bill memo, "Where an electronic recording ... is fully audible and an adequate transcript can be made, the affidavit of errors can be readily prepared by simply attaching the transcript as an exhibit." When the transcript is "materially incomplete or inaccurate, counsel will be required to file an affidavit of errors" under the old system. The new law goes into effect on Oct. 20, 2017. 

CAL Provides Sentencing Nuts and Bolts Practice Tips. The September 2017 edition of the Center for Appellate Litigation's Issues to Develop at Trial is the first in a two-part series on sentencing nuts and bolts, covering some of the topics that cause "real world sentencing related issues" for attorneys when advising clients. This edition addresses " how your client's undischarged period of parole time affects the sentence imposed in your case," as well as the misnomer, the "violent felony override." It also includes a copy of the Uniform Sentence & Commitment form provided to the Department of Corrections and Community Supervision. Prior editions of Issues to Develop at Trial are available at http://www.appellate-litigation.org/issues-to-develop-at-trial .

Quality representation for sentencing is vital. Standards from the Office of Indigent Legal Services state that public defense attorneys should: "Immediately begin preparations for trial and sentencing/disposition"; "Have access to and use as needed the assistance of experts in a variety of fields including ... sentencing advocacy"; and "Provide well-prepared sentencing advocacy in criminal cases, including cases in which a plea bargain exists ...." NYSDA presented CLE training on "Navigating the Sentencing Maze" earlier this year; materials from that and other training on sentencing are available from the Backup Center.

Limited Sealing Law Takes Effect October 7. The new CPL 160.59, titled "Sealing of certain convictions," takes effect Oct. 7, 2017. L 2017, ch 59, part WWW, sections 48 and 48-a (pp. 232-236). Individuals who have been convicted of up to two eligible offenses, but not more than one eligible felony offense, may apply to have those convictions sealed. Eligible offenses may be sealed only after at least 10 years have passed since the sentence was imposed on the latest conviction or, if the sentence included a period of incarceration, at least 10 years since release from incarceration. Offenses that are not eligible for sealing include sex offenses defined in Penal Law article 130 and offenses for which sex offender registration is required under Correction Law article 6-c, offenses defined in Penal Law article 263, violent felony offenses defined in Penal Law 70.02, Penal Law article 125 felony offenses, Penal Law class A felony offenses, and certain felony conspiracy and felony attempt offenses.
Sealing is discretionary. Among other requirements, applicants must file a sworn statement detailing the reasons why sealing should be granted and a copy of the "certificate of disposition or other similar documentation for any offense for which the defendant has been convicted, or an explanation of why such certificate or other documentation is not available." The applicant must serve the application on the prosecution in the county(ies) of conviction. The law calls for the Chief Administrator of the Courts to "prescribe a form application which may be used by a defendant to apply for sealing pursuant to this section." We expect the form to be issued soon and will let readers know when it is available.

Records sealed pursuant to CPL 160.59 remain available to: the defendant or the defendant's designated agent; qualified agencies (defined in Executive Law 835[9]) and federal and state law enforcement when acting within the scope of their law enforcement duties; a state or local officer or agency with responsibility for issuing a license to possess a gun, when the person has made an application for a license; a prospective employer of a police or peace officer, in relation to an employment application; and the FBI Criminal Justice Information Services Division, for the purpose of responding to queries to the national instant criminal background check system regarding attempts to purchase or otherwise possess a firearm. Further, CPL 160.59(10) provides that a conviction sealed under this section "is included within the definition of a conviction for the purposes of any criminal proceeding in which the fact of a prior conviction would enhance a penalty or is an element of the offense charged." Defendants shall not be required or permitted to waive eligibility for CPL 160.59 sealing as part of a guilty plea, sentence, or any agreement related to a conviction for an eligible offense and any such waiver is deemed void. CPL 160.59(11).

Raise the Age FAQ and Information on Specialized Secure Detention Facilities for Older Youth. The Governor's Raise the Age (RTA) website now has a Frequently Asked Questions page covering four topics: (1) Funding; (2); Youth Detention Facilities; (3) Juvenile Justice Processes under RTA; and (4) Adolescent Offender Facilities. Below are a few of the FAQs.
How will the prosecution and defense of youth transition from the Youth Part to Family Court for removal cases?
The transition process for youth whose cases are removed from the Youth Part to Family Court will adhere to the same process that exists for 14- and 15-year-olds currently.
Will eligible counties be able to receive 100% funding for presentment agency costs associated with the additional Article 3 Family Court Act proceedings resulting from the Raise the Age legislation?
Yes, counties will receive 100% reimbursement for additional presentment agency costs (under RTA this refers to JDs prosecuted by a county attorney in cases outside of NYC or the Corporation Counsel for NYC cases, instead of the local District Attorney's office) incurred as a result of RTA. In certain circumstances, there may be a local share of these RTA costs if a county/NYC is unable to comply with the tax cap or demonstrate fiscal hardship as required in the RTA bill.
Will existing jails be permitted to house AOs [Adolescent Offenders]?
Counties will not be permitted to house AOs in existing jails that continue to serve individuals charged or sentenced as adults even if there is sight and sound separation between the populations. However, a county could choose to convert an existing jail to operate solely as a specialized secure juvenile detention facility.  
Where will the newly created local specialized secure juvenile detention facilities for older youth be located?
The location of specialized secure juvenile detention facilities will be determined by the counties. OCFS [Office of Children and Family Services] and the Division of Criminal Justice Services will work collaboratively with the counties to review options for the location of the specialized secure juvenile detention facilities for older youth based on placement trends and bed projections. Counties are encouraged to partner with neighboring or contiguous counties to develop a regional approach to the creation of the local specialized secure juvenile detention facilities as each county will not need to create a new facility, but each county will need to have access to a facility in which to make placements.
Where will the newly-created facilities for Adolescent Offenders be located?
The newly-created AO facilities operated by the Department of Corrections and Community Supervision (DOCCS) will be located at Adirondack Correctional Facility in Essex County (operational October 1, 2018) and the former Groveland Annex in Livingston County (operational October 1, 2019). In addition to the newly created facilities, the Hudson Correctional Facility which is currently used to house incarcerated 16 and 17 year olds will transition to a AO facility. Hudson will be used as the reception center for all AOs received into DOCCS custody and will remain the only AO facility to house female AOs. Hudson will remain an Office of Mental Health and Medical Level 1 facility providing medical and mental health services 24 hours a day.
More information about the collocation of specialized secure juvenile detention facilities for older youth with juvenile secure detention facilities is available in a memo from the Chair of the State Commission of Correction.
We continue to monitor developments regarding the interpretation and implementation of RTA. If you have any questions about RTA, please contact the Backup Center.

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