New York State Defenders Association Public Defense Backup Center RiVolume XVIIEPORT Number 5 September-October 2002 A PUBLICATION OF THE DEFENDER INSTITUTEi Defender News Nassau County Judge Orders $75 AC under VTL 1192(3). A summary of the opinion will appear in a future issue of the REPORT. Rate for Attorney The Nassau County Court has joined the ranks of Hearing Required Promptly After Seizure other criminal courts ordering assigned counsel fees above the statutory rate. Attorney Richard Barbuto, President- of Vehicles in NYC Elect of the New York State Association of Criminal New York City’s forfeiture law, NYC Code § 14-140, Defense Lawyers, submitted a voucher to Judge DeRiggi empowered police to take the cars of DWI and other in the amount of $8,602.50 for representing a difficult defendants upon arrest. Seized vehicles were kept until a defendant on first-degree rape and sexual abuse charges. civil forfeiture hearing was held, usually after the comple- Mr. Barbuto spent more than 100 hours working on the tion of the criminal case. The law did not provide an case, including research into complex DNA issues. The immediate due process hearing to challenge the seizure. court acknowledged, “the statutory rates for assigned Seven defendants challenged the law as unconstitutional counsel in New York State are woefully inadequate. in federal court. The District Court dismissed their com- Attorneys are leaving the assigned counsel panel in droves plaint finding a probable cause arrest and eventual forfei- and many, not all, of those remaining are inexperienced.” ture proceeding sufficient safeguards. On appeal, the 2nd People v Pruitt, No. 2310N-99 (Dist Ct Nassau County Circuit vacated the decision, holding that “promptly after 9/6/02). Finding “extraordinary circumstances,” Judge their vehicles are seized under NYC Code § 14-140 as DeRiggi approved payment in full. In reaction to the deci- alleged instrumentalities of crime, plaintiffs must be given sion, Mr. Barbuto said: “I think it’s a terrific decision and a an opportunity to test the probable validity of the City’s long time coming . It’s been recognized by the judiciary deprivation of their vehicles pendente lite, including proba- that the rates are too low and unless they come up, we will ble cause for the initial warrantless seizure.” Krimstock v lose more and more people from the panel, which means Kelly, No. 00-9488 (2nd Cir 9/18/02); (NYLJ, 9/18/02.) the quality of justice will suffer.” (Newsday, 9/11/02.) DOCS Cannot Challenge Court-Ordered Common Law DWI Can Be Proved Sentence of Concurrent Time Despite Low BAC Reading In 1996, Ricky Murray A common law DWI prosecution was not precluded was convicted on drug Contents by a low blood alcohol content (BAC) reading according charges and sentenced to to the Court of Appeals. In People v Blair, No. 169 SSM 13 seven and one-half to 15 Defender News ..........................1 (NY 9/17/02), the defendant was stopped for a traffic years. A year later, he pled Conferences & Seminars .............4 infraction and appeared to have glassy eyes, impaired Job Opportunities .......................5 guilty to manslaughter Book Review ...............................6 speech and motor coordination, and smelled of alcohol. and was sentenced to Defense Practice Tips 1...............7 He failed the field sobriety tests and admitted drinking seven and one half to 15 Defense Practice Tips 2.............11 five or six beers. The breathalyzer test showed .08% BAC. years consecutive to the Lesser Included Offenses The defendant’s motion to dismiss the DWI complaint Chart .......................Centerfold drug sentence. On appeal, Case Digest: based on VTL 1195(2)(c) was granted, and affirmed on the drug conviction was US Supreme Court ................16 appeal. The Court of Appeals reversed finding that reversed. In lieu of a re- NY Court of Appeals .............17 1195(2)(c) created a rebuttable presumption that a person trial, Murray accepted the First Department....................21 with less than 1.0% BAC was not intoxicated. Therefore, prosecutor’s offer of con- Second Department...............30 Fourth Department ................37 the complaint stated sufficient facts for common law DWI current time with the Defender News continued manslaughter sentence. When Murray inquired about Plenary sessions with two keynote speakers and a parole, the Department of Correctional Services (DOCS) panel discussion began the day. After lunch, the large advised him that his sentence was 12 to 24 years, relying group broke down into workshops, each participant on the consecutive manslaughter sentence the defendant choosing two of six focus groups concentrating on distinct had begun serving. CPL 430.10. Murray challenged their aspects of a criminal prosecution of a mentally ill person. assessment through an article 78 proceeding, and the Topics included: mental health courts, family and com- court ordered DOCS to recalculate the sentence as con- munity impact, the role of the criminal justice courts, and current. DOCS did not have the power to unilaterally supervision and treatment plans. rewrite the court’s sentence order. On appeal, the The convening breathed life into a compelling issue Appellate Division, First Department upheld the court’s that has haunted the practice of criminal defense for many finding, and added that third parties, such as DOCS, did years. (For example, as to the consequences of a success- not have standing to challenge sentences—this right is ful insanity defense, see Re Application of Stone, digest, p. reserved to the defendant and the district attorney. CPL 29.) Project Link leaders assured those attending that the 450.20[4], 450.30[2], [3]; Correction Law 601-a; Murray v dialogue would continue as issues were defined and Goord, 2002 NYSlipOp 06716 (1st Dept 10/1/02); (NYLJ, solutions designed. NYSDA looks forward to future col- 10/2/02.) laborations working toward fair and compassionate dis- positions in cases involving mental health issues. NYSDA Active in Sponsoring and Fourth Department Appellate Training Provided Cosponsoring CLE Continuing a long tradition of providing training with the Appellate Division, Fourth Department, NYSDA Providing affordable, relevant Continuing Legal co-sponsored Mandatory Eligibility Training in Rochester Education for criminal defense lawyers is a major NYSDA on Sept. 14, 2002. Participants learned about appellate goal. In addition to its regular regional and statewide practice from a variety of speakers. From the nuts and trainings, NYSDA has been increasing the number of bolts of practice and procedures in the Fourth Department events it co-sponsors with other entities, including courts, to successful appellate issues and strategies, attorneys other defense organizations, and programs or agencies garnered the information they needed not just to receive from other disciplines. If you do not currently receive appointments as assigned appellate counsel but to pro- announcements of upcoming NYSDA trainings, contact vide high quality representation on appeal. the Backup Center and ask to be added to the list. High Tech Court Brings Future Into Focus Mental Health Issues in Criminal Justice In late September, lawyers in the Albany area took a Examined trip five minutes into the future—where documents are NYSDA recently cosponsored Bridges and Barriers: filed at midnight from a desktop, and trial exhibits dis- Integrating Community Mental Health and the Criminal Justice Systems for Adults with Severe Mental Illness, an inno- vative one-day program at the University of Rochester. Public Defense Backup Center REPORT A PUBLICATION OF THE DEFENDER INSTITUTEi The University of Rochester Department of Psychiatry Volume XVII Number 5 September-October 2002 and Project Link, a pilot project funded to create a reha- bilitation program for individuals with mental illness Managing Editor Charles F. O’Brien caught up in the criminal justice arena, hosted the pro- Editor Mardi Crawford gram with the Monroe County Office of Mental Health. Contributors Stephanie Batcheller, Al O’Connor, Dominique Tauzin, Ken Strutin A qualified mix of professionals and lay people, all of whom have been or will become involved in a case where The REPORT is published ten times a year by the Public a mentally ill person was being processed through the Defense Backup Center of the New York State Defenders criminal justice system, attended this Sept. 27, 2002 event. Association, Inc., 194 Washington Avenue, Suite 500, Albany, The Rochester Police Department, the Monroe County NY 12210-2314; Phone (518)465-3524; Fax (518)465-3249. Our web address is http://www.nysda.org. All rights re- Sheriff’s Office, the courts, the public defense bar, the pro- served. This publication is designed to provide accurate and bation department, mental health service providers, and authoritative information in regard to the subject matter cov- family members of potential offenders participated. (One ered. It is distributed with the understanding that its contents keynote speaker commented on the disappointing do not constitute the rendering of legal or other professional absence of anyone from the prosecutor’s office.) Con- services. All submissions pertinent to public defense work in New York State and nationwide are welcome. tinuing professional education credits were awarded to most attendees, with NYSDA as the legal CLE provider. THE REPORT IS PRINTED ON RECYCLED PAPER 2 | Public Defense Backup Center REPORT Volume XVII Number 5 Defender