Updated Defense Attorney’s Guide to SORA Modification Proceedings

Alan Rosenthal has updated the guide for defense attorneys on SORA modification proceedings he prepared last year (in cooperation with the Onondaga County Bar Association Assigned Counsel Program). The original guide was announced in News Picks on May 24, 2018 . Again, we are grateful to Alan for sharing this valuable resource with the public defense community.

Now Available: Summary of RTA Known Decisions to Date

New York's Raise the Age (RTA) legislation has now been in effect as to 16-year-olds for just over four months. Judicial discussions about language in the statute, and examples of how decisions under the provisions are being applied, are beginning to appear. A summary of several decisions from courts in New York, Queens, Nassau, and Monroe counties, with topical headings, is available here . The topics include: timeliness of retention motion; extraordinary circumstances; significant physical injury; sufficiency of evidence in support of retention motion; and sole actor. The summary was prepared by Nancy Ginsburg, Director of the Adolescent Intervention and Diversion Practice of The Legal Aid Society's Criminal Trial Practice. NYSDA greatly appreciates Ginsburg's generosity in sharing her expertise and work.

In a decision issued earlier today, which is not included in the summary, the Bronx County Youth Part denied the prosecution's motion to prevent removal under CPL 722.23, finding that the prosecution did not establish the requisite "extraordinary circumstances." In its analysis, the court took into account the mitigating circumstance of parental neglect, the child's level of culpability, and his prior juvenile delinquency and youthful offender adjudications. People v J.P., FYC-70038-18.

In other RTA news, Legal Services of Central New York has filed a class action lawsuit against Onondaga County and the County Executive and County Sheriff alleging that, "At the Youth Part of the City of Syracuse Criminal Courthouse ..., adolescent and juvenile offenders ... are denied [the] fundamental right" to "consult privately and without inhibition with his or her attorney ...." According to the suit, despite requests by plaintiffs' counsel, the Onondaga County Assigned Counsel Program, and several defense attorneys that the defendants "stop interfering with Plaintiffs' right to consult privately with their attorneys and provide a confidential meetings space for them to meet with their clients within the Courthouse," the defendants have not changed their policy or made any accommodations.

DOCCS Proposes Changes to Standard Conditions of Release and Parole Revocation Guidelines

The Department of Correction and Community Supervision (DOCCS) has proposed changes to the standard conditions of parole and parole revocation guidelines. According to DOCCS, “The new conditions include conditions substantially similar to current standard conditions, but revised and reorganized for clarity and comprehensibility, amendments to current standard conditions and a new condition relating to maintaining contact with the parole officer and residing at an approved address.”

As for revocation, the proposed replacement for 9 NYCRR 8005.20 “would create new guidelines for assessing penalties that emphasize categories based on current violative behavior, and assign a new set of available penalties based on the severity of such violative behavior.” The new guidelines will also “expand the availability” of DOCCS “alternative program dispositions (dispositions which allow the violator to avoid service of a time assessment by completing the DOCCS program), and the creation of a violation category in which the maximum available penalty is the imposition of such an alternative program disposition.” Finally, under the proposed 9 NYCRR 8002.6(b), “the calculation of time assessments would commence upon the completion of adjudicatory proceedings, and will be deemed a hold to the maximum expiration of the sentence on occasions in which the imposed assessment exceeds the time remaining on such violator’s sentence.”

Public comment on the proposed regulations, due no later than Mar. 31, 2019 , should be submitted to Kathleen M. Kiley, Counsel to the Board of Parole, Department of Corrections and Community Supervision, 1220 Washington Avenue, Building 2, Albany, New York 12226 or [email protected] . The notice of proposed rule making was published in the State Register on Jan. 30, 2019 (pp 3-4).

SCOC Proposes Rules Regarding Recording of Cell Confinement and Essential Service Deprivation

The New York State Commission of Correction (SCOC) filed a Notice of Proposed Rule Making, published in the Jan. 30, 2019 State Register (pp 1-3). The Notice and relevant material can be found on the SCOC website . The purpose of the rule is to “ [r]equire local correctional facilities to record, review and report inmate cell confinement and essential service deprivation.” The Regulatory Impact Statement notes: “Recent, publicized civil rights actions, SCOC field work, and formal inmate grievances appealed to SCOC’s Citizen’s Policy and Complaint Review Council have revealed a prevalent misuse of solitary confinement and deprivation of essential services in county jails, particularly as applied to the 16 and 17-year-old inmate population.” The SCOC noted its “immediate need to sufficiently monitor and oversee such confinement and deprivation.” Public comments, due no later than Mar. 31, 2019 , should be submitted to Deborah Slack-Bean, Associate Attorney, Commission of Correction, Alfred E. Smith State Office Building, 80 S. Swan Street, 12th Floor, Albany, New York 12210 or [email protected] .

Family Court Proceedings and Adverse Immigration Consequences Resources

The New York State Unified Court System’s Advisory Council on Immigration Issues in Family Court has issued advisory memoranda on immigration issues in family court, including one tilted “ Adverse Consequences to Family Court Dispositions .” The Adverse Consequences memo includes a helpful reference chart that is organized by each of the articles of the Family Court Act. This chart demonstrates the importance of practitioners considering their client’s immigration status when advising them on how to proceed with their case. It is imperative for an attorney to advise their client that what may be considered a routine family court disposition could result in their client either becoming “deportable” (subject to deportation or removal from the United States) or “inadmissible” (a non-citizen who is otherwise eligible to re-enter the country is now prohibited from re-entering). This is of particular concern to clients faced with an allegation of violation of a Family Court Order of Protection. A court determination that a non-citizen violated either a temporary or permanent Order of Protection can trigger one of the immigration consequences as described above.  

The Advisory Council’s memoranda and other resources are posted on the Fund for Modern Courts website at http://immigrants.moderncourts.org/resources/ . In January, the New York State Bar Association’s Committee on Children and the Law offered a program on this topic; the materials for this program are available here .

Defenders who are representing non-citizen clients are encouraged to contact their Regional Immigration Assistance Center about these and other issues regarding the intersection of immigration law and New York's criminal and family laws. Contact information is available on NYSDA's website at https://www.nysda.org/page/CrimImmResources.

CHAMP May Help Clients with Insurance Issues Regarding Mental Health/Substance Abuse Care

The New York Association of Psychiatric Rehabilitation Services posted a reminder on Feb. 4, 2019, about the Community Health Access to Addiction and Mental Healthcare Project (CHAMP). This Ombudsman program, according to a news release last October, " will educate individuals, families, and health care providers on their legal rights to coverage, help them to access treatment and services and will investigate and resolve complaints regarding denial of health insurance coverage." A flyer about the services offered is available here . CHAMP does not provide health insurance.

Association News

New Issue of NYSDA's  Backup Center   REPORT   Now Available

The   January 2019 issue   of NYSDA's  Public Defense Backup Center REPORT   is now available on the NYSDA website. NYSDA members will receive a hard copy of the latest issue by mail soon. If you have any questions, please contact the Backup Center at 518-465-3524.

NYSDA’s Metropolitan NY Trainer Registration Now Open!

The New York State Defenders Association will be presenting the 33rd Annual Metropolitan Trainer at NYU Law School on Saturday, March 9, 2019 . This full-day program will include an update on recent Court of Appeals decisions, common ethical dilemmas in criminal defense, and a panel presentation titled "Gangs of New York: An Investigative Approach." More information about the program is available here . Preregistration by Friday, March 1 is required. Questions? Contact Alexandra Walters at the Backup Center at 518-465-3524 or [email protected] .

NYSDA’s Budget Testimony is on Our Website

NYSDA presented testimony at legislative hearings on the state budget in late January. As noted on our home page , the Veteran’s Defense Program offered testimony at the Human Services hearing on January 24. Testimony concerning NYSDA’s Backup Center, as well as other public defense and justice issues was presented at the hearing on Public Protection.