New SORA Practice Guide Available
Issues to Develop at Trial
: Excited Utterances and Out-of-State Predicate Offenses
The Center for Appellate Litigation (CAL), in the
August 2019 issue of its publication called
Issues to Develop at Trial, focuses on the need to ascertain whether clients' out-of-state and federal convictions qualify as predicate offenses that can be used to enhance offender status or sentence. The issue provides a "very brief refresher" about predicates and "a 'cheat sheet.'" The latter, which comes with instructions and a couple caveats, lists "federal and out-of-state predicates (from nine commonly-seen states) that New York appellate courts have already determined do not qualify as New York felony or violent felony equivalents."
In the
July 2019 issue of
Issues to Develop at Trial, CAL "sets out a challenge that the Court of Appeals (or at least Judge Rivera) has invited you to make –
that the excited utterance exception to the hearsay rule should be abolished because it is based on discredited assumptions about the reliability and accuracy of such out-of-court statements." The Court recently rejected, due to lack of preservation, a challenge to the continued viability of the excited utterance exception.
People v Almonte, 2019 NY Slip Op 05185 (6/27/2019). Judge Rivera, in an opinion dissenting on other grounds, said as to the hearsay issue, "Given that defendant's arguments in our Court are based, in part, on academic literature, and the scientific community's evolving understanding of human behavior and an individual's capacity to fabricate under stressful conditions, defendant should have developed a record below on the state of the science." CAL includes a list of points to make when objecting to admission of an excited utterance, along with a template Memorandum on this issue.
2nd Annual NYS Public Defenders Career Fair on Oct. 4 at University at Buffalo
NYSDA, the Chief Defenders Association of New York, and the University at Buffalo School of Law are sponsoring the 2nd Annual New York State Public Defenders Career Fair on Friday, October 4, 2019, from 1:00 – 4:00 pm at the Center for Tomorrow on the University at Buffalo North Campus. The NYS Public Defenders Career Fair is an opportunity for public defense offices around the state to recruit law students and recent law school graduates for attorney and internship positions. Employers and students can register for the Career Fair at
http://www.law.buffalo.edu/cso/public-defender-career-fair.html.
In addition to the Career Fair, NYSDA posts job opportunities for public defense and related positions on our website at
https://www.nysda.org/page/Jobs. If you know someone who may be looking for a new opportunity, please share this link with them. And if you have a public defense job to advertise, you can send it to sbryant@nysda.org for posting on NYSDA's website. (Note: we do not charge for job postings.)
Comment Period Open on Federal Waiver for Providing Medicaid Services Prior to Release from Incarceration
The New York State Department of Health (DOH) submitted for public comment an application to provide Medicaid services to certain people in jails and prisons beginning 30 days before their release. According to a DOH
press release, the waiver would apply to those "who have two or more chronic physical/behavioral health conditions, a serious mental illness, HIV/AIDS, or opioid use disorder," and would "include care management, such as 'in-reach,' a care needs assessment, development of a discharge care plan, making referrals and appointments with physical and behavioral health providers, and linkages to other critical social services and peer supports."
Comments, due
Sept. 13, 2019 (30 days from the Aug. 14, 2019 online posting of the waiver amendment), may be submitted by email to 1115waivers@health.ny.gov or by mail to: NYS Department of Health, Office of Health Insurance Programs, Waiver Management Unit, 99 Washington Avenue, 12th Floor, Suite 1208, Albany, NY 12210. This issue affects many public defense clients. If you submit comments, NYSDA would appreciate receiving a copy.
DOCCS Seeks Comments on New Solitary Confinement Rules
The Legislature failed to pass the Humane Alternatives to Long-Term (
HALT) Solitary Confinement bill to curb solitary confinement this year, a bill that is
supported by many organizations, including NYSDA. As reported in a
New York Law Journal
article on Aug. 28, 2019, legislators agreed to allow the Department of Corrections and Community Supervision (DOCCS) to promulgate new standards to reduce the use of isolated confinement in state prisons. DOCCS has now issued proposed
rules. The
notice at page 3 of the NYS Register indicates that no hearings on the proposal have been scheduled, but
"[p]ublic comment will be received until: 60 days after publication of this notice," i.e. until Oct. 27, 2019.
SCOC Proposes Amendments to Rules for Solitary in Jails
The State Commission of Correction (SCOC) also has
proposed amendments to its rules regarding disciplinary and administrative segregation in special housing. As with the DOCCS proposal, comments will be accepted until Oct. 27, 2019. The notice of proposed rule making states: "The Commission has developed local correctional facility regulations which would prohibit the disciplinary or administrative segregation, in special housing, of any inmate that is pregnant, within eight (8) weeks of delivery or pregnancy outcome, has a mental or physical disability, or has a serious mental illness. For all others, disciplinary or administrative segregation in special housing would be allowed only for conduct that poses an unreasonable risk to the health, safety or security of staff, inmates or facility security, with the duration of such segregation eventually limited to 30 days, absent an immediate or continuing unacceptable threat."
This proposal follows amendments SCOC enacted earlier this year that added a new Part 7075 (Inmate Confinement and Deprivation) to Title 9 of the NYCRR and required local correctional facilities to record, review, and report cell confinement and essential service deprivation. That proposal was discussed in the
Feb. 11, 2019, edition of News Picks and was enacted without change on June 5, 2019, as noted in an SCOC Chairman's Memorandum on
May 28, 2019 and
published in the State Register.
Association News
Criminal Appellate & Post-Conviction Practice II: Friday, September 13
Please join us for a full-day criminal appeals CLE program on September 13 at the Holiday Inn Express, Wolf Road, Albany. The program is co-sponsored by NYSDA and the Appellate Defender Council of the New York State Office of Indigent Legal Services. The program and registration details are
available here.
The registration deadline is tomorrow, Thursday, September 5.
NYSDA Welcomes John Turi as Board President, Wishes Ed Nowak Well
At the 52nd Annual Meeting and Conference, it was
announced that Edward J. Nowak, long-time President of NYSDA's Board, was stepping down. He is succeeded by John C. Turi, Rensselaer County Public Defender. NYSDA thanks Ed for all he has done for the Association, and looks forward to working with John, who has served on the Board since 2015, in his new role!
May-July Issue of NYSDA's
Backup Center REPORT is Online
The
May-July 2019 issue of NYSDA’s
Public Defense Backup Center REPORT is available on the NYSDA website. NYSDA members should already have received a hard copy of the latest issue by mail. If you have any questions, please contact the Backup Center at 518-465-3524.
