2nd honker
Sept. 3, 2015
News Picks from NYSDA Staff
News Picks
New Probation Practitioner Handbook for Management of DWI Offenders. The NYS Office of Probation and Correctional Alternatives (OPCA) recently released the New York State Probation Practitioner Handbook for the Management of the DWI Offender . The handbook "covers all the steps in which a probation officer may have contact with a DWI offender from the pretrial stage through supervision to completion of probation," as well as management of underage and female DWI offenders, laws and regulations governing driver's licenses and relicensing, supervision technology and ignition interlock devices (IIDs), and various forms.
The OPCA Director's accompanying memorandum noted that "a growing number of probation departments have indicated their intention to develop written policies concerning probation DWI practice in their respective communities and have reported that the Probation Practitioner Handbook can help inform their work." Attorneys who receive copies of local probation department policies are encouraged to share them with NYSDA so they can be made available to other practitioners.
Other DWI resources for practitioners include the OPCA Summary of Alcohol-Related Risk Assessment Instruments ; the OPCA Ignition Interlock web page , which includes links to the ignition interlock regulations (9 NYCRR Part 358) and information on qualified manufacturers, IIDs, and county IID monitors; DMV web pages on getting lifetime driving records , driver's license penalties for DWI convictions, and the Drinking Driver Program ; and the OASAS web page on Impaired Driver Services .
Article on ILS Post-Conviction Best Practices/Standards. An article on the " Standards and Best Practices for Appellate and Post-Conviction Representation" issued by the Indigent Legal Services Office (ILS) in January appeared in the New York Law Journal on Aug. 27, 2015. The authors focus on four standards that triggered discussion among some members of the bar and judiciary. The four are: IV. Mandatory Brief Review; IX. Meeting with the Client; XX. Collateral Litigation: CPL Article 440 Motions; and XXII. Issue Selection. The process through which the standards emerged is described, and the goals of the standards are set out. The conclusion points out that the remaining 22 standards generated little discussion and that concerns about paying for tasks that public defense budgets do not currently cover can be addressed by seeking funding through ILS. Co-author Risa Gerson, Director of Quality Enhancement for ILS, chaired the working group that drafted the standards, which appear on the ILS website . Co-author Tammy Feman, Deputy Chief of the Nassau County Legal Aid Society's Appeals Bureau and a member of the working group, chaired the subcommittee on parent representation. The Law Journal article can also be read here .
Discovery of Social Media Records in Custody Cases. In A.D. v C.A. ( 2015 NY Slip Op 25283 [Supreme Ct, Westchester Co 8/13/2015]) , a Westchester matrimonial judge ordered a wife in a custody dispute to turn over four years' worth of her Facebook postings to aid in determining how much time she had spent with her child. The litigation involved a custody dispute between parents where the plaintiff father asserted that the defendant mother traveled extensively for work thus reducing the amount of time spent with their child. As a means of proving his claim, the father sought disclosure of the Facebook postings, which he alleged he no longer had access to because his wife "unfriended him." 
To be successful, the party demanding access to social networking accounts must demonstrate that the request will lead to the disclosure of relevant evidence. See Abrams v Pecile, 83 AD3d 527 (1st Dept 2011). In its analysis, the A.D. v C.A. court cited several decisions in personal injury cases that focused on the scope of demands for social networking records and the need for in camera review of such records, including Spearin v Linmar, L.P.(129 AD3d 528 [1st Dept 2015]), Richards v Hertz Corp. (100 AD3d 728 [2nd Dept 2012]), Winchell v Lopiccolo (38 Misc 3d 458 [Supreme Ct, Orange Co 2012]), and Caraballo v City of New York (2011 NY Slip Op 30605[U] [Supreme Ct, Richmond Co 2011]). 
The court concluded that the plaintiff's postings, even if not available to the general public, are still subject to disclosure and that the time each party spent with the child may be relevant and material to the custody determination. Thus, the court ordered the defendant to deliver to the court, for in camera review, printouts of her Facebook postings that depict or describe her whereabouts outside the New York City area, from the time of the child's birth to the start of the proceeding. It also ordered the defendant to submit an authorization allowing the court to access her Facebook postings during that time frame.
Updated Indian Child Welfare Act Guidelines, Resources, and Webinars for Parent Attorneys. In February of this year the U.S. Department of the Interior, Bureau of Indian Affairs (BIA), issued new guidelines for the Indian Child Welfare Act (ICWA) of 1978. These guidelines, not updated since 1979, clarify tribal authority and the respective responsibilities of the agencies and the state courts in custody proceedings involving tribal children and their families. The BIA webpage on ICWA offers additional materials.
Practitioners in New York should be aware of the New York Federal-State-Tribal Courts and Indian Nations Justice Forum, which offers numerous materials that explain the intersection of tribal and other authorities, as well as efforts to ensure that New York adheres to the requirements of ICWA. From basic information about New York Indian Nations to a case law decision list with links, the Forum website supplies vital information for the New York family court practitioner.
The ABA's National Project to Improve Representation for Parents offered a webinar series (scroll down to Webinars) for parent attorneys about ICWA: Indian Child Welfare Act: What Parents' Attorneys Need to Know. Both the audio and the PowerPoint presentations from the series are available for free.
Upcoming NAPD Webinars. The National Association for Public Defense (NAPD) has a number of webinars scheduled in the upcoming weeks that are free to NAPD members, $10 for others. Individual memberships are $25. While NAPD is not currently able to offer CLE credit for these webinars, they provide valuable information on a wide range of topics. The NAPD website also provides news and commentary about public defense.
Efforts to Save the Federal Public Service Loan Forgiveness Program. As noted in the June 11, 2015 issue of News Picks, some members of Congress have called for the elimination of the federal Public Service Loan Forgiveness (PSLF) Program. The American Bar Association has launched a social media campaign to protect the PSLF Program from elimination. More information about the ABA campaign is available here. The National Legal Aid & Defender Association (NLADA) is also working on this issue; attorneys who want to receive updates from NLADA regarding the PSLF program and share personal stories regarding how the proposed changes to the program may affect them can do so using the form available here.

Copyright © 2012-2015 New York State Defenders Association