2nd honker
Sept. 29, 2017
News Picks from NYSDA Staff

News Picks
Board of Parole Adopts New Parole Release Regulation. In 2011, the Legislature directed the Parole Board to modernize its release decision-making process. By Oct. 1, 2011 the Board was directed to establish new written procedures incorporating "risk and needs principles" to measure a person's "rehabilitation" and "likelihood of success upon release." But the Board failed to act until July 2014 and the regulation it belatedly adopted - calling for mere unguided and indiscriminate "use" of the COMPAS risk and needs assessment instrument - was roundly criticized as meaningless. Court challenges to the 2014 regulation were complicated by procedural issues. See Matter of Linares v Evans , 26 NY3d 1012 (2015) (declining to rule on legality of regulation for prudential reasons). Nevertheless, the issue gained traction with a highly critical New York Times editorial and Governor Cuomo called for reform in his 2016 State of the State address.
The Board has now finally adopted a new regulation in conformity with the 2011 legislation. Under the regulation, Board members must now be "guided" by a risk and needs assessment instrument when making release decisions. Importantly, the regulation provides that "[i]f a Board determination, denying release, departs from the Department Risk and Needs Assessment scores, the Board shall specify any scale within the ... Assessment from which it departed and provide an individualized reason for such departure." Other changes include a direction that all statutory parole release factors be discussed during a parole release interview, and that reasons for parole release denials be explained in "factually individualized and non-conclusory terms."
The regulation also includes new parole release criteria for persons serving sentences for crimes committed as a minor (under 18). See Matter of Hawkins v NYS Dept. of Corr. & Comm. Supervision , 140 AD3d 34 (3rd Dept 2016). Board members are now directed to consider "the diminished culpability of youth" and a person's "growth and maturity." Board members must also consider whether certain "hallmark features of youth" ("immaturity, impetuosity, a failure to appreciate risks and consequences, and susceptibility to peer and familial pressures") were "causative" or "contributing factors" to the crime of conviction. The new regulation, repealing and replacing 9 NYCRR 8002.1, 8002.2, and 8002.3, took effect Sept. 27, 2017. The text of the regulation and the Board's assessment of public comment can be found in the Sept. 27, 2017 issue of the State Register (starting on p. 1). 

Application to Seal Criminal Conviction Forms and Instructions Available. The New York State Unified Court System has released the forms and instructions persons may use to apply for sealing of a criminal conviction pursuant to the new provision CPL 160.59, which takes effect on Oct. 7, 2017. The court's website includes a list of five "Steps to Prepare and File a CPL 160.59 Sealing Application," as well as three documents: Request for Criminal Certificate of Disposition for CPL 160.59 Sealing Application; Sealing Application: Notice of Motion and Affidavit in Support of Sealing Pursuant to CPL 160.59; and a List of District Attorney's Offices.
If applying for sealing of multiple convictions, the Notice of Motion and Affidavit in Support of Sealing Pursuant to CPL 160.59 and supporting documents must be filed in the court where the most serious conviction was entered, and must be served on the district attorney in each county of conviction. Applicants should be encouraged to provide detailed reasons regarding why the court should, in its discretion, grant sealing, which may require additional pages, as well as other supporting documentation such as evidence of rehabilitation, letters of recommendation, etc. You can find more information about CPL 160.59 in the Sept. 26, 2017 issue of News Picks. 

IDP Releases Sixth Edition of Representing Immigrant Defendants in New York. The Immigrant Defense Project (IDP) has released the sixth edition of its invaluable immigration manual, Representing Immigrant Defendants in New York , by Manuel D. Vargas. The manual "provides information about the foundations of crim-imm and strategies to avoid adverse immigration consequences in either criminal or immigration proceedings." It is useful for New York criminal defense practitioners representing immigrant clients who need to comply with their constitutional and ethical duties to investigate and advise about the immigration consequences of convictions; advocates representing or counseling immigrants in removal proceedings; and individuals facing potential immigration consequences of a New York criminal case.
The sixth edition contains updates through June 2017. It is available to public defenders, nonprofits, and assigned counsel for $75 and $100 for all others. In conjunction with NYSDA, IDP has provided one manual for each public defense office in New York, which will be mailed out soon. We thank IDP for sharing this valuable resource with public defense providers.

Public Service Loan Forgiveness: Application for Forgiveness Available. The federal Public Service Loan Forgiveness (PSLF) Program is a program that "forgives the remaining balance on your Direct Loans after you have made 120 qualifying monthly payments under a qualifying repayment plan while working full-time for a qualifying employer." Qualifying monthly payments had to be made after October 1, 2007, so the earliest that an individual could apply for PSLF is in October 2017.
The U.S. Department of Education has finally released the Public Service Loan Forgiveness: Application for Forgiveness . Individuals who meet all of the qualifications must submit an Employment Certification Form from each qualifying employer they worked for during the time they made the 120 monthly payments.
The Education Department has a PSLF Program Q & A page that is a helpful resource. Equal Justice Works also offers a number of resources and webinars on their Student Loan Forgiveness and Repayment page regarding the PSLF Program and other programs. If, after reading these materials, you have any questions, please contact Susan Bryant at the Backup Center at 518-465-3524 or sbryant@nysda.org .

Jail Suicide Information and Other Jail News. Information posted late last year by the Prison Policy Initiative concerning " The life-threatening reality of short jail stays " continues to circulate and raise questions about jail policies and the overuse of jails. Reentry Central's subscription-based e-news recently paired that information with a story about Colorado using $6 million of marijuana tax revenue to keep people experiencing a mental-health crisis out of jail. The Colorado program was noted in a May 31, 2017 item on Westword.com. For public defense lawyers, who are called on by New York State standards to "[z]ealously advocate for pretrial release and/or diversion," information about jail safety might be helpful in crafting arguments for release of clients potentially at risk.
Of course, suicide is not the only risk posed by jails. Questions about medical care, solitary confinement, and insufficient mental health treatment arise repeatedly. A class-action lawsuit challenging the use of solitary confinement for 16- and 17-year-olds in Onondaga County led to a settlement last June. Now, as reported by The Daily Orange, "In a victory for local social justice groups and community activists, the Onondaga County Legislature voted earlier this month to ban youth solitary confinement in all county detention centers and jails." NYSDA congratulates Legal Services of Central New York and the New York Civil Liberties Union, and all those who helped bring about this change.
A suit challenging placement of youth in solitary has also been filed in Broome County, as The New York Times noted at the end of July. Meanwhile, jail deaths there led members of Justice and Unity for the Southern Tier (JUST) to protest during a recent Broome County Jail open house. And jail conditions in Nassau County recently led activists, joined by local legislators and family members of people held in the jail, to demand immediate reforms. Around the state, activists and lawyers are refusing to accept the status quo noted by the U.S. Supreme Court in upholding strip searches five years ago; it may be that "[j]ails are often crowded, unsanitary, and dangerous places," but those conditions are neither inevitable nor right.

Association News
Former NYSDA Board Member Hammock Has Died.  Attorney Edward R. Hammock, a former member of NYSDA's Board of Directors for a total of 18 years over two separate periods, a former Chair of the New York State Parole Board, and a voice for parole reform, died on Sept. 3, 2017. NYSDA joins others in grieving the loss of this voice for justice, remembers Ed's many contributions, and extends sympathy to the many who loved him. A memorial service will be held on Thursday, Oct. 26, 2017 at 3:30 p.m., at Promise Ministries International, 130-30 31st Ave., Flushing, NY 11354. Please RSVP before Oct. 15, 2017: lawoffice@hammock-sullivan.com or (718) 358-6400. 

Return to Top

Copyright © 2012-2017 New York State Defenders Association