News Picks

Court of Appeals: Police Must Tell Suspect When a Lawyer is Available before Breath Test; Second-Degree Aggravated Harassment Statute is Vague and Overbroad. In one of several decisions recently issued by the Court of Appeals, the Court found that "the statutory right to legal consultation applies when an attorney contacts the police before a chemical test for alcohol is performed and the police must alert the subject to the presence of counsel, whether the contact is made in person or telephonically." Three judges dissented. People v Washington, 2014 NY Slip Op 03190 (5/6/2014).

In another decision, the Court addressed several charges resulting from a defendant's Internet campaign to "attack the integrity and harm the reputation" of certain individuals in academia. The plethora of charges yielded a long opinion, which held, among other things, that the second-degree aggravated harassment statute, Penal Law 240.30(1)(a), is unconstitutionally vague and overbroad. Chief Judge Lippman dissented in part. People v Golb, 2014 NY Slip Op 03426 (5/13/2014).

Summaries of more Court of Appeals decisions are included in the newest issue of the Public Defense Backup Center REPORT, which will be posted on the REPORT page of our website in the coming days.

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Comprehensive List of Office of Children and Family Services' Guidance Documents Available. The Office of Children and Family Services (OCFS) recently published a comprehensive list of all of the guidance documents on which it currently relies, with the date each document was created or updated. The list includes all of the Office of Strategic Planning and Policy Development's policy directives [Administrative Directives (ADM), Informational Letters (INF), and Local Commissioners Memoranda (LCM)], such as 13-OCFS-INF-07, which announced the new website for the Coordinating Council on Children with Incarcerated Parents. Policy directives can be found on the OCFS website here and some other OCFS publications are available here.

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Ethics Opinions on Researching Jurors' Internet Presence. According to a recently issued American Bar Association (ABA) formal ethics opinion, "[u]nless limited by law or court order, a lawyer may review a juror's or potential juror's Internet presence, which may include postings by the juror or potential juror in advance of and during a trial, but a lawyer may not communicate directly or through another with a juror or potential juror." Formal Opinion 466 also states that "[t]he fact that a juror or a potential juror may become aware that a lawyer is reviewing his Internet presence when a network setting notifies the juror of such does not constitute a communication from the lawyer in violation of Rule 3.5(b)," which the Opinion notes is in conflict with the conclusions of two ethics opinions out of New York, New York County Lawyers' Association (NYCLA) Formal Opinion 743 and New York City Bar Formal Opinion 2012-2. This conflict is discussed in a New York Law Journal letter to the editor titled "Why ABA Opinion on Jurors and Social Media Falls Short." Attorneys preparing for trial should carefully review these opinions and any existing court or judge-specific rules or orders on this subject.

Ethics questions surrounding the use of Internet resources and particularly social media to investigate witnesses and gather information about clients are addressed by a number of different bar associations, including the New York State Bar Association (Opinion 843), the New York City Bar (Formal Opinion 2010-2), and the Oregon State Bar Association (Formal Opinion 2013-189), as well as the recent publication, "Social Media Ethics Guidelines of the Commercial and Federal Litigation Section of the New York State Bar Association" (Mar. 18, 2014).

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Innocence Project Seeking to Partner on Test Cases Challenging Unreliable Forensic Sciences and Eyewitness Misidentification. "The Innocence Project is seeking partners to litigate test cases involving unreliable forensic sciences and eyewitness misidentification," as noted recently in an article posted on the National Association for Public Defense's website. Attorneys who have cases of potential interest should contact M. Chris Fabricant, the Innocence Project Director of Strategic Litigation, at cfabricant@innocenceproject.org, or Karen Newirth, Senior Fellow, Strategic Planning at knewirth@innocenceproject.org.

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State Bar and Albany Law to Hold Public Defense Summit. On June 6, 2014, the New York State Bar Association's Committee to Ensure Quality of Mandated Representation (CEQMR) and Albany Law School will hold "The Past, Present, and Future of Indigent Defense in New York: Where Has 10 Years of Reform Gotten Us; and Where Are We Going?" The Program is free, but registration is required, as noted here. NYSDA Executive Director Jonathan E. Gradess and Staff Attorney Mardi Crawford are among the scheduled panelists.  Program participants also include Bill Leahy and staff from the Indigent Legal Services Office, Juanita Bing Newton (Dean of the NYS Judicial Institute), a number of Chief Defenders and others.  Chief Judge Jonathan Lippman will present opening remarks.

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Resource Aid for Representing Juveniles. The National Institute of Corrections has published a comprehensive list of resources that reviews a wide range of information in the field of juvenile justice, which covers juveniles up to age 18. Citations are organized into areas including Courts, Juvenile Assessment, Assessment Tools, Programs, Programs for Young Women, Facilities, Training, Websites, and Juvenile Sex Offenders. Each annotation explains what the item is about, and many contain links to additional resources and information. This Juvenile Justice Annotated Bibliography will be valuable to practitioners faced with juvenile-specific assessments and will help defenders develop defense strategies and individualized disposition plans for young clients, especially at a time when New York is examining alternative ways to treat 16- and 17-year olds.

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Second Circuit Opens Door for More Deportation Waivers. On May 7, 2014, the Second Circuit Court of Appeals abandoned its prior precedent and found that it is impermissible to retroactively apply a 1996 Congressional repeal of a waiver from deportation to an immigrant who was convicted after trial prior to 1996. United States v Gill, No. 12-2207, __ F3d __ (2d Cir 2014). This ruling came in the context of defendant Gill's challenge of his conviction for the federal crime of illegal reentry after a prior removal order. Gill had challenged his reentry prosecution on the basis that his prior removal order was fundamentally unfair because he was not allowed to pursue the former Immigration and Nationality Act 212(c) waiver for which he would have been eligible at the time of his pre-1996 conviction. The court below found that Gill was ineligible for the 212(c) waiver because he was convicted at trial rather than after a guilty plea. See Rankine v Reno, 319 F3d 93 (2d Cir 2003) (declining to extend protection against retroactive application of the 1996 law for those who pled guilty prior to 1996 to those who went to trial because the court said it could not conclude that individuals who chose to go to trial did so in reliance on the availability of 212(c) relief). However, in Gill, the Second Circuit found that the reasoning of Rankine had been implicitly overruled by the U.S. Supreme Court in Vartelas v Holder, 132 SCt 1479 (2012), which specifically rejected Second Circuit precedent finding that individuals could not demonstrate impermissible retroactive effect if they could not show reliance on prior law.

The Second Circuit joins several other federal circuits, as well as the Board of Immigration Appeals in their February 28 decision in Matter of Abdelghany, 26 I&N Dec 254 (BIA 2014), in finding that lawful permanent resident immigrants may apply for a 212(c) waiver of deportation for a pre-1996 conviction, if otherwise eligible, regardless of whether the conviction resulted from a plea or trial. A Practice Advisory about 212(c) waivers post-Matter of Abdelghany is available from the Immigrant Defense Project and the National Immigration Project of the National Lawyers Guild.