News Picks from NYSDA Staff
May 24, 2018
Defense Attorney’s Guide to SORA Modification Proceedings
A guide for defense attorneys on
SORA modification proceedings
is now available. Prepared by Alan Rosenthal (in cooperation with the Onondaga County Bar Association Assigned Counsel Program), the guide addresses the three petitions for relief or modification referenced in Correction Law 168-o: petitions by the registrant for relief from registration, petitions by the registrant for downward modification, and petitions by the prosecution for an upward modification. It offers practice tips, relevant case law, checklists, and sample pleadings and other documents. We are grateful to Alan for sharing this valuable resource with the public defense community.
Protecting Clients in a post-
May 2018 edition
of the Center for Appellate Litigation (CAL) newsletter,
Issues to Develop At Trial
, contains a breakdown of how to advise your client on immigration matters in the wake of
Padilla v Kentucky
, 559 US 356 (2010), and in the current environment of increased activity from Immigration and Customs Enforcement (ICE). The newsletter notes that its purpose is “not to set forth the advice you should give in any particular situation, but to offer some tips that will help ensure that you acquire the full information you need to protect your client and are better able to take steps from the outset of the case through sentencing, and even post-sentencing, to ensure that your client isn’t put at further risk by the plea he or she enters.” As noted in this edition, attorneys representing non-citizen clients should consult with immigration experts at their local Regional Immigration Assistance Office. Contact information is available on NYSDA’s
nd on the Office of Indigent Legal Services’
. Prior editions of
Issues to Develop at Trial
are available on CAL’s website at
Not Contesting any Findings Constituted Ineffective Assistance in CPL 330.20 Matter.
A client who pleaded not responsible by reason of mental disease or defect was denied the effective assistance of counsel in the subsequent determination to assign him to the most severe of three "tracks" under Criminal Procedure Law 330.20, an Appellate Division panel held recently.
Matter of Matheson KK.
2018 NY Slip Op 03195 (3rd Dept 5/3/2018). Defense counsel said at the initial commitment hearing that, after reviewing the psychiatric reports by two psychiatric examiners opining that the client had "a dangerous mental disorder requiring inpatient psychiatric care at a secure facility," the defense was "‘not contesting the findings at this time.’" Counsel did not call witnesses or present evidence; "seek to cross examine the psychiatrists who prepared the reports"; nor consult an expert who might have offered a different opinion "or, at the very least, could have clinically assessed the examination reports and the approaches taken in reaching their ultimate conclusions …." The Third Department could discern no "plausible strategy or legitimate explanation for counsel’s decision," noting an absence of any basis in the record to conclude that the potential defense avenues "— particularly cross-examination of the psychiatric examiners — would have been futile or otherwise destined for failure …."
The appellate court made the merits determination after finding that review was not precluded by the respondent's waiver of appeal as part of the plea. The respondent was not told during the plea colloquy that the waiver of appeal applied "to the distinct, postplea civil commitment proceedings that would follow his plea," and the written waiver of appeal specified that it applied to any issues about counsel's effectiveness "'
[his plea in this case,'" saying nothing about the effectiveness of counsel following the plea.
As the waiver was determined not to apply to the postplea representation challenged on appeal, the opinion did not delve into the propriety of plea waivers that include ineffective assistance claims. As NYSDA has reported in the past, routinely requiring defendants to waive effective assistance of counsel claims as part of plea bargains raises ethical concerns. See "Prosecutors Cannot Ethically Routinely Require Waivers of IAC Claims in Guilty Pleas" in the
Aug. 16, 2016, News Picks
. And see the
Aug.-Sept. 2014 issue
Backup Center REPORT,
at pages 3-4.
Alabama State Bar
Formal Opin. 2011-02
Second Department Calls Order for Psychological Evaluation Improvident Exercise of Discretion.
In a Family Court article 10 proceeding, the petitioner social services agency requested that the court order a psychological evaluation of the respondent mother before the fact-finding. The allegations against her were that she failed to “‘work cooperatively with the appropriate agencies’ to ensure” her child, whom she reported had been sexually abused, “‘would receive appropriate counseling and services.’” While acknowledging that ordering an evaluation is within the discretion of the court, the Second Department found that where the record did not include any indication that the parent suffered from a mental illness, and the petition did not contain allegations that placed the parent’s mental illness at issue, such an order was “an improvident exercise of discretion .…”
Matter of Tyriek J.
, 2018 NY Slip Op 03361 (2nd Dept 5/9/2018).
Driver has Reasonable Expectation of Privacy in Rental Car Even Absent Authorization.
The US Supreme Court held on May 14, 2108, "that, as a general rule, someone in otherwise lawful possession and control of a rental car has a reasonable expectation of privacy in it even if the rental agreement does not list him or her as an authorized driver." The majority opinion discussed the importance to individual liberty of the Fourth Amendment's protections against unreasonable searches and seizures, concluding that while there is no per-se rule that rental-car drivers not listed on the agreement automatically lack an expectation of privacy in the car, neither is there an automatic finding that sole occupants of rental cars always have a reasonable expectation of privacy therein. The court remanded the case for consideration of the government claim that the driver in question "had no greater expectation of privacy than a car thief," in which case there would be no legitimate privacy expectation.
Byrd v United States
Justices Thomas and Alito concurred.
s noted in an
the stop in
occurred after a state trooper decided that "Byrd looked suspicious because he was driving with his hands at the '10 and 2' position on the steering wheel, was sitting far back from the steering wheel, and was driving a rental car." An Electronic Frontier Foundation (EFF)
praised the Court's refusal "to let a private contract dictate Fourth Amendment rights."
Need CLE? June and July Offer Opportunities.
Upcoming CLE events relevant to public defense lawyers include the annual State Bar mandated representation program, National Association for Public Defense (NAPD) webinars, and of course NYSDA's Annual Meeting and Conference.
"2018 Public Defense Trainer," Fri., June 1, 2018, in Albany. This is the New York State Bar Association's annual public defense event, presented this year by the Committees on Mandated Representation and Continuing Legal Education. The criminal defense focused topics include: Brain-teasing Ethical Scenarios Based Upon Actual Court of Appeals Cases; Raise the Age is Coming; Parole: From Release to Revocation; and Bail: A through I and the Bias Component. A networking lunch is included. Registration is $50 for those who are not members of the State Bar, $25 for State Bar members. Presenters from across the state include NYSDA'S own Susan Bryant; Andrew Kossover; Norman Effman; Christopher Liberati-Conant; Robert Dean; Leah Rene Nowotarski; Jennifer Stergion; and Lorraine McEvilley. For more information and to register, click
Upcoming NAPD webinars include "Writing a Compelling Statement of Facts" on June 1, 2018, 2:00 p.m. EDT. The presenter for this 60-minute session is Bradley Hall of the Michigan State Appellate Assigned Counsel System. Learn how to view the facts of a case through the lens of an advocate and to present an accurate and compelling view of a client’s case using facts that are material to the theme and theory of the case. For more information and to register,
. For other NAPD webinars, visit
NYSDA's 51st Annual Meeting and Conference will again be at the Gideon Putnam in Saratoga Springs. For
reservations, call the Gideon at (866) 746-1077. Use Group Code: 9nb2ga. Specify event name NYS Defenders Association 2018 Conference. The program brochure is coming soon.
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