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New York Criminal Law Newsletter a Publication of the Criminal Justice Section of the New York State Bar Association

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New York Criminal Law Newsletter a Publication of the Criminal Justice Section of the New York State Bar Association NYSBA WINTER 2018 | VOL. 16 | NO. 1 New York Criminal Law Newsletter A publication of the Criminal Justice Section of the New York State Bar Association In This Issue: n New Criminal Justice Legislation n Cell Phone Search and Seizure n Fraud Case Disclaimers n The REDEEM Act and Sealing n Photos from Nassau County Bar Event Get Ready for the 2018 Young Lawyers Section’s Trial Academy The Criminal Justice Section is pleased to co-sponsor the NYSBA Young Lawyers Section’s annual Trial Academy, and offer a scholarship to attend the Academy. The Young Lawyers Section Trial Acad- emy is the New York State Bar Association’s only comprehensive trial training program. This intensive five-day trial techniques and advocacy program is geared toward young and new lawyers—teaching, advancing, and improving the quality of their experience in the courtroom, in order to benefit their ca- reers and their client’s interests. The Trial Academy will be held Wednesday, April 4, through Sunday, April 8, 2018. Participating in the Trial Academy is the perfect opportunity to gain critically important trial ex- perience outside of the courtroom. Participants attend a morning lecture on an aspect of a trial and spend the afternoons in small groups with their designated team leader demonstrating the day’s trial skill from a previously provided fact pattern. One-on-one critiques will be provided by a rotating fac- ulty made up of NYSBA leadership and leading litigators, advocates and judges from every region of New York. The Trial Academy is open to any attorney wishing to learn or improve upon their trial skills and provides a unique opportunity for participants to have a meaningful experience which extends be- yond a typical classroom setting. To apply for the Criminal Justice Sec- tion’s Trial Academy scholarship, please complete the application form, which can be found online at www.nysba.org/crimtrial- academy and submit by December 1, 2017. The scholarship is a full tuition scholarship; the attendee is responsible for room, travel, and some food. Scholarship recipients will be notified as soon as possible. For more information, please email Amy Jasiewicz at [email protected], or phone/digital fax 518-487-5682. Visit www.nysba.org/crimtrialacademy to apply. You can also apply for the Young Lawyers Section scholarship, deadline Feb. 2, 2018. Table of Contents Page Message from the Chair .................................................................................................................................................................4 Tucker C. Stanclift Message from the Editor ................................................................................................................................................................5 Jay Shapiro Feature Articles A New Front in Sealing ..................................................................................................................................................................6 By Rick Collins The Tech Corner: Carpenter v. United States—Search and Seizure (Cell Phone Records) ......................................................7 By Jay Shapiro “Deep Sixing” Disclaimers: The Court Rejects Fraud Case Disclaimers ................................................................................9 By Roger Bennet Adler New Criminal Justice Legislation ...............................................................................................................................................11 By Barry Kamins Photos from Nassau County Bar Association Event .......................................................................................................... 14-15 New York Court of Appeals Review ..........................................................................................................................................20 By Jay Shapiro United States Supreme Court News ...........................................................................................................................................21 By Spiros Tsimbinos Section Committees and Chairs ..................................................................................................................................................25 NEW YORK STATE BAR ASSOCIATION Request for Articles If you have written an article you would like considered for publication, or have an idea for one, please contact New York Criminal Law Newsletter Editor: Jay Shapiro [email protected] Articles should be submitted in electronic document format (pdfs are NOT acceptable), along with biographical information. Message from the Chair One of the wonderful primarily because the refusal to submit to the “field test” things about being Section would result in the revocation of a motorist’s driver’s Chair is the opportunity to license similar to a refusal of a breathalyzer in the DWI travel the state to advance the context. This issue was explored by our Vehicle and Traf- interests of our members. fic Law Committee and a report was approved by our Executive Committee earlier this year. It is fair to say that Our Fall Program was not all our membership agreed with the conclusion to held at the Nassau County oppose the proposed legislation. However, the process Bar Association with live embodies the diverse spirit of our Section’s leadership demonstrations of a DWI ar- in that it was debated by judges, defense attorneys and rest. (Photos are in this issue prosecutors. It is this type of spirited debate and consid- at pages 14–15). We enlisted eration that adds legitimacy to all of our Section’s reports. local law enforcement to con- We continue to honor this tradition as we tackle other duct Standardized Field Sobri- substantive criminal justice issues, such as the sealing of ety Tests (SFST) on volunteers in various states of intoxi- federal convictions, counsel at first appearance and cen- cation. The program also included direct examination of tralized arraignments. the police officer by a local prosecutor, as well as cross- examination by a local defense attorney. I highlight this My previous “Message from the Chair” alluded to program above all others because it embraces everything a strategic planning session of our Executive Commit- our Section programs should be about: it was unique, tee. The session was productive and helped us focus on insightful, hands-on and informative. We also worked the various ways we deliver benefits to our members. closely with the local bar to co-sponsor the program, We identified two key perspectives: (1) responsibility recruit local speakers, and promote it to prosecutors, in- to the profession through the advancement and/or op- stitutional defenders, judges and private attorneys. We position to legislation affecting criminal justice, and (2) had attendees from most of these categories in greater responsibility to our members by offering benefits such numbers than in the past. The program concluded with as programming that is unique, insightful, hands-on and an informal networking reception at a local restaurant. In informative. We focused upon the need for our commit- my view, these opportunities are at the heart of what the tees to stay in front of proposed legislation so we can Section should be doing for its members. We will be of- effectively research, report and debate before the issue fering more of this type of programming! becomes a legislative priority in Albany. We also recog- nized that too often our programs are geared toward the Next, I traveled to Buffalo to connect with NYSBA delivery of CLE. In this day and age, CLE can be obtained President Sharon Stern Gertsman. I feel it is imperative over the internet and by other providers. We committed that our Section leadership keep an honest and effective to delivering programs that are not merely CLE-based. line of communication open with the Bar President and Instead, we will provide our members with an experience the Bar leadership as a whole. We discussed the financial that cannot be duplicated while sitting at home in paja- health of the Section in comparison to other substantive mas. We will endeavor to honor these responsibilities as sections and the ways we may be able to work together we move into the new year…and beyond! with these other Sections to provide cost-effective pro- grams to appeal to the members of each Section. Addi- I look forward to seeing you at our Annual Meeting tionally, we discussed bail reform and the importance of program in January in New York City. Thank you for the moving forward with that initiative as we approach the privilege of serving as your Chair. Annual Meeting. It is an important issue for our Section to advance because it is one that defenders, judges and Tucker C. Stanclift prosecutors agree needs to be addressed. Our Bail Re- form Committee is already working diligently to prepare a report to share with our Section’s Executive Committee and the Association’s House of Delegates. The hope is to Mark Your Calendar! create Bar policy on this issue. CJS Annual Meeting CLE I also traveled back to Nassau County to testify be- fore the Governor’s Traffic and Safety Commission on and Awards Luncheon proposed legislation. In sum, the legislation seeks to cre- ate a duty on law enforcement to “field test” mobile tele- Wednesday, January 24, 2018 phones and other electronic devices after a motor vehicle New York Hilton Midtown, NYC accident. The technology is referred to as a “Textalyzer” 4 NYSBA New York Criminal Law Newsletter | Winter 2018 | Vol. 16 | No. 1 Message from
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