Raise the Age (RTA) Underway. The first phase of the legislation raising the age of criminal responsibility began on Oct. 1, 2018. While little data is available at this point, one news article reported that between Oct. 1 and Nov. 8, there were 150 arrests of 16-year-olds throughout the state, 122 of which were in New York City. As of yet, no clear statewide picture has emerged of what impact the change is having on public defense providers and vice versa.

The RTA problem receiving the most attention to date has been detention, including pretrial detention, of youth affected by RTA. Particularly upstate, the question arises, " Where Will NY's Adolescent Offenders Go? ", as the headline of a lengthy Nov. 6 , 2018 article asked. Youth covered by RTA cannot, by law, be housed in adult lockups; the State Commission of Correction (SCOC) amended 9 NYCRR 7501.1(c) to comply with the legislation, as announced in the State Register (see pp. 3-4). To help resolve the immediate problem of where to hold youth when no magistrate is available for an after-hours arraignment, the Co-Chairs of OCA’s Raise the Age Implementation Committee issued a memo to Administrative Judges saying law enforcement may use juvenile questioning rooms as temporary, non-secure holding areas until either a magistrate becomes available or the next session of the Youth Part begins.

The cost benefits of regionalizing detention facilities upstate have attracted proponents, but being housed far from home—and from one's lawyer—carries significant detriments for the young clients for whose benefit RTA was passed. Few facilities exist. A list of Specialized Secure Juvenile Detention Facilities available on the Office of Children and Family Services (OCFS) website was most recently updated on Dec. 14, 2018.

As cases wend their way through the new processes, other issues will no doubt arise, from legal arguments over language in the RTA statute to sentencing and detention issues arising as case dispositions begin in earnest. Resources are available to public defense lawyers through the Backup Center and its publications. These include both materials developed for trainings and newly updated information. New resources available for lawyers, counties, and others interested in RTA developments, include:

-Hudson Adolescent Offender Facility - Directive #0057
-Adirondack Adolescent Offender Facility - Directive #0041
-Standards of Adolescent Offender Behavior & Allowances - Directive #4932A
-Adolescent Offender Separation Unit - Directive #4933C

  • Office of Probation and Correctional Alternatives proposed regulations amending 9 NYCRR Parts 351 and 352 and new Part 359. [The comment period has closed. A group of public defense organizations in New York City submitted comments regarding the proposal, primarily about the use of risk assessment tools.]

Third Department Clarifies Law on Terroristic Threats
The Third Department reversed a conviction under Penal Law 490.20(1), making a terroristic threat. The defendant had made threats against a judge and other “county officials” in letters to his estranged wife. But there was no proof he intended to “influence the policy of a unit of government” by making the threat.” The Court concluded that the letters “reflect defendant's vented anger towards those individuals involved in his Family Court proceedings …. Although we do not sanction defendant's written statements, they do not comport with our current understanding of terrorism ( see generally  Penal Law § 490.00).” People v Richardson , 2018 NY Slip Op 08368 (3rd Dept 12/6/2018).

Recording Custodial Interrogations: Policies and Costs
As reported in the New York Law Journal on Oct. 26, 2018 , the District Attorneys Association of the State of New York has asked Governor Cuomo to increase state funding for, among other things, technology and training needs; money for the recording of custodial interrogations was included in the request. As a prior News Picks item noted, grants of over $650,000 were awarded to local law enforcement agencies earlier this year for new or updated equipment in advance of the CPL 60.45 and Family Court Act 344.2 changes requiring video recording of some interrogations.

A Model Policy for Recording of Custodial Interrogations from the Division of Criminal Justice Services (DCJS) Municipal Police Training Council was issued just before the April 1, 2018 effective date of the new law. Those standards were updated in June of this year and are available online. The NYS Association of Chiefs of Police noted that the amendments include:

1) language that specifies the statutorily required crimes that must be recorded when an individual is subject to a custodial interrogation and is in custody at a facility specified in Section 305.2 (4) of the New York State Family Court Act;
2) guidance on the use of interpreters and/or auxiliary aids during the recorded custodial interrogation; and
3) clarifying language when to give Miranda warnings to the parent or guardian when interrogating a child. 

DCJS Lanuches Criminal Justice Knowledge Bank and Resource Consortium
As noted in an October 2018 press release , the NYS Division of Criminal Justice Services has created "a new website for criminal justice professionals to share promising and innovated programs and practices designed to reduce crime and recidivism. The  Criminal Justice Knowledge Bank  provides professionals the opportunity to learn from each other and access national criminal justice resources and also features information about the Criminal Justice Research Consortium, which connects police, prosecutors and probation professionals with academics across the state to research and develop evidence-based approaches to address specific public safety issues in their communities.

Importance of Meaningful Father Engagement Emphasized
A recent Information Memorandum (IM) from the federal Administration for Children and Families (ACF) emphasizes that "meaningful father engagement" is important "in all AFC programs to better serve children and families." The memo encourages all human services agencies "to work together across governments to jointly create and maintain an environment that prioritizes father engagement as a critical factor in strengthening families and adopt approaches to enhance paternal involvement in all family support and child welfare related programs." The IM notes that even in the face of "long-term incarceration, fathers can remain an important source of support and connection for children and youth." It points out the need to engage fathers in a variety of programs, asserting for example that the child support enforcement program "works with fathers from the time their children are born" and by engaging fathers early, "protects the legal connection fathers have with their children and supports lifelong emotional and financial support." Similarly, the paternity establishment program is said to have "helped more than 1.4 million fathers create legal bonds to their children." Child support programs, the IM adds, are encouraged "to enhance their efforts to work with fathers in positive and supportive ways."

Association News

NYSDA Mourns the Passing of Ken Strutin
It is with great sadness that we announce that Ken Strutin, NYSDA's Director of Legal Information Services, passed away after a brief illness. Ken's death is a great loss to his family, colleagues, and everyone he directly and indirectly assisted. He has been in this position since 2004, and was a Legal Information Services Consultant for the Association before that. Ken provided invaluable help to NYSDA's legal staff, to defenders, and to people in prison struggling to gain their freedom in pro se litigation. His brought to his work a background in criminal defense, a Master's Degree in Library Science from St. John's University, and a deep passion for justice that manifested in his extensive legal writing. Ken educated lawyers about new litigation strategies using digital resources; he authored one of the first books of its kind, The Insider’s Guide to Criminal Justice Resources on the Internet , in 2002. He corresponded with and provided information to innumerable incarcerated persons, and called for extending the right to counsel in post-conviction matters. In 2016, he wrote a law review article about that. It included this quote: "Even if it rained law books day and night in the prison yard, it could not possibly obviate the trauma and oppression of incarceration sufficiently to turn prisoners into lawyers." An obituary appeared in the New York Law Journal.