Bench Book for Judges on Bail Reform

With bail reform implementation looming on Jan. 1, 2020, judges who will be handling the new procedures have a resource to help them prepare, and to serve as a guide when the legislation takes effect: New York's Bail Reform Law: A Bench Book for Judges , revised as of July 11, 2019. As even the Table of Contents makes clear, there will be issues, like the "Question of Whether Remand or Bail can be Imposed Upon Conviction for Non-Qualifying Offenses" and the uncertainty reflected in the topic "Bail Apparently Not Prohibited for Material Witnesses." For defense lawyers, this guide provides not just information about the new law but the information that judges are likely to be relying on. Each topic in the Bench Book includes not only statutory citations but also citations to the bill section of the enacting legislation, Part JJJ of L 2019, ch 59.

Final Phase of Raise the Age Starts

As of Oct. 1, 17-year-olds are now covered by the procedures set out in Raise the Age (RTA) legislation passed in 2017. The Raise the Age Task Force has issued its " First Annual Report ," which found that the first phase, involving 16-year-olds, had been successfully implemented and that the state is "prepared for the second phase …." An article in the Brooklyn Daily Eagle reported some less sanguine comments.

The NYS Unified Court System’s Office of Justice Initiatives has posted statewide judicial decisions pertaining to RTA at https://drive.google.com/drive/folders/1QiNnNI1cTuEUUaTdM49YY2uYpzthHhSE . The decisions are divided into several categories, including extraordinary circumstances, violent felony three factor test, and accessible magistrates. New decisions are added periodically. NYSDA encourages public defense providers to contact the Backup Center about RTA developments in their counties.

DVSJA Sentencing Charts

The Domestic Violence Survivors Justice Act (DVSJA) took effect on May 14 for sentences imposed on or after that date and the resentencing provisions took effect on Aug. 12, as noted in the May 17 edition of News Picks from NYSDA Staff. Lawyers with clients who are domestic violence survivors and have upcoming sentencing proceedings—whether resentencing or initial sentencing—may refer to charts created by Alan Rosenthal to help determine the parameters of what the client faces. There are three charts: Class A Felony Sentencing; Current Non-Violent (First and Second Felony, Non Drug); and Current Violent (First and Second Felony). NYSDA thanks Alan and the Onondaga County Assigned Counsel Plan, where he is a Resource Attorney, for sharing these materials.

If you are representing a client on a resentencing application or are aware of former clients who may be eligible for resentencing, please contact the Backup Center. We have collected resources from a number of public defender providers that others may find helpful when reaching out to potentially eligible individuals, examining eligibility, and preparing resentencing applications.

Marijuana Odor as Basis for Search Questioned

A judge has called into question the long-established police practice of justifying a search by saying that an officer detected the odor of marijuana. Such police testimony has become so ubiquitous "that it should be subject to a heightened level of scrutiny if it is to supply the grounds for a search," wrote Bronx Acting Supreme Court Justice April A. Newbauer. She also said, "the time has come to reject the canard of marijuana emanating from nearly every vehicle subject to a traffic stop …." People v Hill , Ind. No. 853-2017 (Bronx Sup Ct 7/25/2019). A Sept. 12 New York Times article about the decision recounted some of the history of police stops based on the smell of marijuana, and noted that other states have more stringent rules than New York. A nearly contemporaneous Associated Press s t ory looked at the question of whether searches based on the smell of a substance that is legal, or at least decriminalized, are legally justified. NYSDA thanks the Bronx Defenders for sharing the Hill decision.

Fact Sheet on Marijuana "Decriminalization" and Expungement Available

The Community Service Society, Legal Action Center, and The Legal Aid Society have posted a fact sheet , "New York's New Marijuana 'Decriminalization' and Expungement Law: What You Need to Know." Using bullet points, the document sets out in clear language the effect of the statutory reforms in L 2019, chs 131 and 132 , which took effect Aug. 28, 2019.

ILS Seeks Family Court Defenders for Its Time Sufficiency Survey

The New York State Office of Indigent Legal Services (ILS) is looking for family court defenders who provide mandated representation to complete its time sufficiency study. This detailed and extensive survey asks defenders to first give their opinion as to whether they currently have enough time to complete the tasks necessary to provide effective representation in each of their cases, and then asks them to estimate how much time they would ideally spend to complete such tasks, in order to consistently deliver quality representation. This survey is part of a three-part process ILS is conducting to inform its recommendations on appropriate maximum caseload standards for family court defenders, as recommended by the Commission on Parental Representation in its Interim Report to Chief Judge DiFiore. If you would like to participate please follow this link: https://www.surveymonkey.com/r/FCRepTimeSufficiency. If you have any questions regarding the survey, please contact ILS Assistant Counsel Lucy McCarthy at [email protected]. The Commission's Interim Report is available at https://www.ils.ny.gov/content/commission-parental-legal-representation.

Donnino: Look Over—Don't Overlook—the Guide to New York Evidence

The Unified Court System publishes its online-only Guide to New York Evidence at www.nycourts.gov/JUDGES/evidence/ . The Guide was launched in early 2018. Since then, it has been expanded to nine sections, including judicial notice, relevance & its limits, witnesses & impeachment, and hearsay. Retired New York Supreme Court Justice William C. Donnino, who chairs the committee commissioned for the Guide's publication, published a description of this resource and its history in the New York Law Journal under the heading, "New York's Evidence Guide: the Court System's 'Best Kept Secret.'" 

Association News

Death of Former Executive Director Jonathan E. Gradess

With deep sorrow, NYSDA has announced that, two years after he retired as NYSDA's Executive Director, Jonathan Gradess passed away on Oct. 2. His death came very soon after a devastating medical diagnosis. The outpouring of love and support that began when news of Jonathan’s illness first became known continued with news of his death and was visible at the celebration of life on Oct. 10 that was announced in the obituary written by his family. Jonathan leaves a legacy of devotion to clients and justice, expressed in his advocacy for systemic change and for individual people. It dwells in the hearts, memories, and actions of all those he helped and inspired. NYSDA mourns Jonathan and will continue the work that he engaged in with passion and joy.

Client Advisory Board Member Helga Schroeter Died in August

Helga A. Schroeter, a member of NYSDA's Client Advisory Board, died on Aug. 20. She had held the posts of Judicial Chair of the League of Women Voters of Schenectady County and Judicial Specialist for the League of Women Voters of New York State, and came onto the Client Advisory Board as NYSDA Liaison to the State League. That was in 2013, the year after she retired from The Fund for Modern Courts, where she was a court monitor and lobbyist. Her obituary appears online here . She was a friend to the client community and we will miss her greatly.

NYSDA Welcomes New Staff

Megan (Meegan) O'Toole is Our Training Manager and Operations Specialist

Bringing with her nearly 14 years of experience working in the association realm, Megan O'Toole has joined NYSDA's Public Defense Backup Center in Albany. She is working with the NYSDA staff attorneys responsible for our criminal and family court training programs, and is helping to improve and streamline training planning, outreach, and other processes. Among her previous positions was that of Associate Director, Member Outreach and Development, at the New York State Bar Association. She looks forward to meeting you at our upcoming CLE programs.

Rebecca Murphy Comes Aboard as Legal Research Librarian

Coming to the Backup Center from the law library at Albany Law School, where she worked for the past 16 years, is Rebecca (Becky) Murphy. At NYSDA, she provides legal research services to the legal staff, manages the extensive print and electronic resources that make up our Clearinghouse, and helps with the website and electronic publications.

Roy Diehl is VDP’s New Deputy Director

Roy Diehl, Lieutenant Colonel, US Army (Retired), has recently been named as the new Deputy Director of NYSDA’s Veterans Defense Program. He is an Albany Law School graduate. His military career includes service in Germany during the Cold War, at Ground Zero in 2001, in Iraq in 2005 with New York’s 42nd Infantry Division, and at the Pentagon, prior to retiring in 2015. His positions included legal assistance officer, operational planner, Senior Defense Counsel, training officer, and Team Chief at the Army Operations center. Roy will be providing legal assistance to defenders in the 1st, 3rd, 9th, 12th, and 13th Judicial Districts.

For more information about NYSDA Staff, see our website .

Register Today for NYSDA's Oct. 26 RIT Criminal and Family Defense Update

NYSDA will be presenting an all-day Criminal and Family Defense Update on Saturday, Oct. 26 at the Rochester Institute of Technology. The brochure is available here. The program will feature presentations on Bail, Speedy Trial Reform; Discovery 2020; How to Successfully Overcome a Willful Finding in Family Court; and Clearing the Hurdle of Res Ipsa Loquitur in Abuse and Neglect Cases. For more information on this and other NYSDA trainings or to register, please contact Megan (Meegan) O’Toole at [email protected].