Supreme Court Issues Monumental Decision Implicating All Predicate Felony Sentences

In June, the Supreme Court in Erlinger v United States issued a decision on the Armed Career Criminal Act (ACCA) that has major implications for New York’s predicate sentencing laws.

Erlinger holds that a unanimous jury must make a determination beyond a reasonable doubt that a person’s past offenses were committed on separate occasions under the ACCA. So, any factual determination that increases a sentencing range must be made by a jury under a reasonable doubt standard (or by person entering a plea), not a judge under preponderance of the evidence. The National Association of Federal Defenders, National Association of Criminal Defense Lawyers, and FAMM (previously known as Families Against Mandatory Minimums) all wrote amicus briefs urging the court to reach this conclusion.

While the ACCA is a federal statute, Erlinger has important ramifications for New York State practice. Now under the Fifth and Sixth Amendments any fact that creates a higher sentencing range - other than “the fact of a prior conviction” - must be made by a jury. That means that much of New York’s predicate felony sentencing statutes, Penal Law 70.04, 70.06, 70.08 and 70.10, as well as 60.12, 70.07, 70.70, 70.71, and 70.80 and their CPL procedural counterparts, are now ripe for litigation.

The first decision dealing with these issues was released in late July, People v Lopez, out of Manhattan. Applying Erlinger, Judge Conviser found that persistent violent felony offender determinations requiring tolling determinations now need to be made by juries. But, under the decision’s reading, New York’s procedural laws explicitly bar juries from making determinations relating to punishment - which is what the court determines the temporal calculation for a tolling provision would be. The decision includes a lengthy discussion of a bifurcated jury trial process that would need to be created by the Legislature. The court ultimately sentenced Lopez as a first, not second, felony offender, and left many of the larger statutory and Constitutional questions raised by Erlinger unanswered.

The end result of Lopez is that “[t]he Legislature may now be faced with the necessity of revising New York’s predicate felony sentencing rules.” Until that happens, litigation and preservation of Erlinger issues are imperative. The Office of Indigent Legal Services created a Practice Advisory that practitioners should take note of. Training on the use of Erlinger is expected in the coming weeks and months. If you have any questions on predicate sentencing issues, please reach out to Backup Center Staff Attorney Max Kampfner at mkampfner@nysda.org.

IDP Updates Immigration Consequences Checklist

The Immigrant Defense Project updated their “Consequences of Convictions Checklist.” The checklist is an indispensable resource for convictions which bar non-citizens from various forms of immigration relief, including Citizenship, Temporary Protected Status, Asylum, Cancellation of Removal and Deferred Action for Childhood Arrivals. The checklist also updates mandatory detention rules and “reasons to believe drug trafficker” definitions under the Immigration and Naturalization Act. Defense attorneys representing clients who are citizens of another country are encouraged to contact the RIAC in your region for immigration-specific assistance.

Fourth Department Reverses Family Court Judge for Bias, Once Again

In a case that serves as a good reminder to family defenders that they are entitled to time to prepare their case and confer with their client, the Fourth Department once again issued a stinging rebuke and reversal of a decision made by Onondaga County Family Court Judge Julie Cerio. Matter of Onondaga County v Taylor (7/26/2024). The appeals court said that failure to allow the attorney proper time to prepare “denied respondent his right to counsel and, thus, denied him a fair hearing, prior to sentencing him to a period of incarceration.” Overturning the judge’s decision that confirmed a finding of willful violation against a father and sentenced him to six months in jail, the Fourth Department was particularly critical of the fact that the judge appeared to have “‘a predetermined outcome of the case in mind during the hearing’ (Matter of Anthony J. [Siobvan M.], 224 AD3d 1319, 1320 [4th Dept 2024] [internal quotation marks omitted]) and ‘took on the function and appearance of an advocate’ (Matter of Zyion B. [Fredisha B.], 224 AD3d 1285, 1286 [4th Dept 2024].” In both of the above-cited cases, the Fourth Dept. admonished Judge Cerio for bias (see March 20, 2024 edition of News Picks).

Greenburgh Police Ordered to Disclose FOILed Police Disciplinary Records

Problems continue in enforcing the 2020 repeal of Civil Rights Law 50-a, which had protected police disciplinary records from disclosure, in the context of New York’s Freedom of Information Law (FOIL). On July 31st, the Second Department overturned a Westchester County Supreme Court ruling that had denied a FOIL request for “certain law enforcement disciplinary records and records relating to allegations of misconduct” of police in Greenburgh. The decision in a CPLR article 78 proceeding rejected the argument that records created prior to the repeal are still exempt from disclosure. It also rejected the claim that “the privacy exemption under Public Officers Law § 87(2)(b) creates a blanket exemption allowing the respondents to categorically withhold the disciplinary records of unsubstantiated allegations of misconduct ….” Matter of Gannett Co. v Town of Greenburgh Police Dep’t., 2024 NY Slip Op 04071 (7/31/2024). As noted in an August 6th article on LoHud.com, the “decision follows a recent string of cases in which the Second Department and other appellate courts have ordered the release of unsubstantiated records and pre-2020 records.” Despite that consensus, the article went on, the Court of Appeals has agreed to hear these issues in the upcoming term.

Information about the pending case is available in the Center for Appellate Litigation’s July 15th edition of its Court of Appeals Update. See Matter of NYCLU v Rochester, 210 AD3d 1400 (11/10/2022), lv granted 39 NY3d 915 (6/13/2023). Another Fourth Department case, Matter of Abbatoy v Baxter (2024 NY Slip Op 02393 [5/3/2024]), is summarized in the April-June issue of NYSDA’s Backup Center REPORT. A discussion of the effects of the 50-a repeal can be found in the Nov.-Dec. issue of the REPORT. And links to police records can be found on NYSDA’s Law Enforcement Disciplinary Records webpage.

Ethics Opinion on CAFA Question Addresses Only Narrow Issue

The New York State Bar Association Committee on Professional Ethics responded to an inquiry by a part-time assistant public defender (APD) whose law partner and cousin is a part-time judge in a town court. Both the APD and partner/cousin sometimes appear, in their respective capacities, in a centralized arraignment part (CAP); the APD does not appear when the partner/cousin (or that person’s co-judge) presides in the CAP. The question was whether the inquirer is barred from acting as counsel at first appearance (CAFA) in the CAP on cases that would be transferred after arraignment to the town court in question, where a different APD would represent the client.

Ethics Opinion 1269 (7/19/2924) notes that a part-time APD “may not represent clients in a town court where his law partner/cousin, or the law partner/cousin’s co-judge, preside,” citing Judiciary Law 471 and the Rules of Judicial Conduct. While the inquirer could not continue representing a client whose case moved to the town court, the Committee said, representation in the CAP, for CAFA purposes only, would “not violate Rule 8.4(f)” of the New York Rules of Professional Conduct. It says, “[a] lawyer or law firm shall not… knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct or other law ….”

The inquirer and opinion did not address other rules or standards that may have bearing on the situation. For instance, avoiding the conflict of interests posed by routinely having a different attorney appointed for all arraignment clients with cases going to the relevant town court denies those clients vertical, i.e., continuous, representation. (If all clients receive new counsel after appearing in a CAP, the problem is systemic.) Representation by the same attorney throughout a case (absent factors making a change in counsel beneficial to the client) is a crucial factor in providing quality defense services. Many public defense standards call for vertical representation, including the State Bar’s 2021 Revised Standards for Providing Mandated Representation, Standard I-5; the Indigent Legal Services Office’s Conflict and Trial Level Criminal Defense Standards, Standard 5; and the American Bar Association’s Ten Principles of a Public Defense Delivery System, Principle 8.

Further, arraignment-only representation and post-arraignment gaps in determining eligibility create other many problems, including investigation delays, confusion about where the prosecution should send prompt discovery, gaps in representation that implicate speedy trial, and failure to file certain notices or request Crawford hearings. The ILS Office’s Statewide Plan for Implementing Counsel at Arraignment: Year Five Report (9/29/2023) notes that “quality arraignment representation requires more than the mere presence of an attorney.” Ongoing systemic problems exist in many counties; out of 52 counties, 30 reported delayed eligibility screening, with 25 reporting “that their attorneys regularly limit the scope of arraignment representation, usually by making a record that the appearance is for ‘arraignment only.’” NYSDA will continue to advocate for the resources and structures needed to ensure that all clients receive continuous and vertical representation, in compliance with public defense standards and the Rules of Professional Conduct.

Cornell Law’s Appellate Criminal Defense Clinic Enters Third Year

The Cornell Chronicle highlighted their law school’s Appellate Criminal Defense Clinic, which will be offered again this spring for the third year. Run in conjunction with the Center for Appellate Litigation, the clinic represents individuals in the First Department, including any oral arguments. “Students regularly communicate with their clients through letters or phone calls, and each student team visits their incarcerated clients at least once during the semester.”

While defender offices across the state and country are struggling with hiring and retention, it is heartening to note that public defense clinics in law schools are popular, including this one - only one-fifth of the students that apply are accepted.

NYS Inspector General Issues Report on DOCCS Compliance with HALT

On August 5th, the Offices of the Inspector General (OIG) released a report reviewing the first two years of Department of Corrections and Community Supervision (DOCCS) compliance with the Humane Alternatives to Long-Term Solitary Confinement Act (HALT). The report notes “an upward trend towards compliance with each of the law’s mandates,” according to the announcement, but stresses that “DOCCS’s antiquated recordkeeping systems pose significant impediments to DOCCS’s ability to accurately monitor and report on critical metrics ….” The announcement says the report calls for “modernizing recordkeeping systems …, aligning public reporting practices with HALT’s requirements, and ensuring robust data management capabilities.” The report “also identified a number of areas where DOCCS remains short of full compliance with the provisions of HALT, including insufficiencies in documentation supporting the use of segregated confinement, instances where mandated consultations with [Office of Mental Health] staff were not conducted, and disparities in access to programs and recreation in [Residential Rehabilitation Units] compared to general population settings.”

The conclusion of the report focuses almost exclusively on the need for better record-keeping so that HALT compliance can be measured. It also says that ambiguity in HALT’s language as to who is included in the vulnerable population it aims to protect requires “statutory clarification.” The Senate passed a bill last session that would provide the necessary clarification, but it did not reach the Assembly floor for a vote. An article posted on NYStateOfPolitics.com found that there is frustration with the slow implementation of HALT. It quoted, among others, Jerome Wright, the co-director of the H.A.L.T. Solitary Campaign (a project of the New York Campaign for Alternatives to Isolated Confinement) and formerly incarcerated person. “‘Here we are, two and a half years later, and they’re still not putting it into effect,’ Wright said.”

Litigation around HALT’s implementation was discussed in the most recent issue of the Backup Center REPORT (see below). NYSDA supported the passage of HALT and urges full implementation of its provisions and intent.



Association News

April-June Issue of the Public Defense Backup Center REPORT Available

The April-June 2024 issue of NYSDA’s newsletter, the Public Defense Backup Center REPORT, is available on the NYSDA website. Printed copies have been mailed to NYSDA members. If you have questions, please contact the Backup Center at info@nysda.org or 518-465-3524.

Upcoming Training

Friday, September 27, 2024: All the Way Up: How to Take Your Digital Evidence Litigation to the Next Level, Albany Law School

This one-day in-person training will feature some of the most experienced, brilliant litigators in the digital evidence space, including John Ellis, Sidney Thaxter, Julie Frye, Brian Cummings and Emily Prokesch. The sessions will cover the most recent developments in geolocation data, device and account searches, and lessons from State v. Pickett to prepare you to utilize discovery litigation for optimal case outcomes and successfully litigate source code whether you are litigating DNA evidence or digital evidence. The program will finish with a panel where the topics of the day are tied together and audience questions from throughout the day will be answered in a conversational format. For more information and to register, click here.

Thursday, October 17, 2024, 1:00 – 2:00 pm, Informational Session on the Clean Slate Act

NYSDA will be hosting a free informational session on the Clean Slate Act by the NYS Division of Criminal Justice Services (DCJS) and the NYS Office of Court Administration (OCA). DCJS and OCA will provide an overview of the Clean Slate legislation and implementation of the law. No CLE credit will be offered for this program. For more information and to register, click here.