Funding for NYSDA's Public Defense Backup Center has again been eliminated in the 1997 Executive Budget, recently submitted by Governor Pataki. The Backup Center is relied upon by public defense lawyers across the state for critical legal research services, training, and technical support. Without NYSDA's statefunded Backup Center, the quality and effectiveness of public defense services at the county level will suffer immeasurably.
Eliminated along with NYSDA are: Prisoners' Legal Services of New York, Indigent Parolee Representation Program, and the Neighborhood Defender Services of Harlem. Their last year's budgets, totaling $5,573,000, were $822,000, $3,560,000, $691,000 and $500,000, respectively. The Executive Budget also cuts Aid to Defense by 50%, from $13,837,000 to $6,900,000.
The governor's budget combines the Aid to Prosecution Program with the State Aid to DA's Salaries. The total funds recommended increase from $23,013,200 to $24,438,200.
The governor's budget does increase the funds for payment of defense attorneys and defense services other than counsel, from $2,100,100 to $2,501,300.
The Capital Defender Office appropriation is cut 10%, from $5,190,800 to $4,674,000. Reappropriations for capital defense included in the Executive Budget total $6,659,800, $4,359,800 for the CDO, $2,300,000 for attorney fees and defense services other than counsel. (See related story regarding nonpayment for capital legal assistance on page 3.)
The New York State District Attorneys Association and the New York Prosecutors Training Institute are provided $3,500,000 for assistance and training in capital cases, which is level funding from FY 199697.
Sex offender risk level determinations imposed by trial courts prior to the release of an offender from prison or jail are not appealable, according to a recent decision by the Appellate Division, Second Department. People v Darryl Stevens (1/13/97). The Court ruled that risk level determinations are not amendments to the original sentence or resentences, and therefore are not appealable in the absence of express statutory authority. Because the Sex Offender Registration Act fails to include a provision authorizing appeals from such orders, defendants are without recourse on direct appellate review.
New York's Sex Offender Registration Act was modeled closely after New Jersey "Megan's Law," which also failed to include statutory authority for an appeal. Although the New Jersey Supreme Court found that an offender has a due process right to appellate review of his risk level (Doe v Poritz, 662 A2d 367 [NJ 1995]), the Second Department's brief memorandum does not address this constitutional claim.
Also left unaddressed by the Second Department is whether risk level determinations can be reviewed under CPLR Article 78, or on direct appeallate review as a final civil order. A copy of the Lester decision is available from the Backup Center.
The New York City administration received 13 bids at the end of 1996 from attorneys and groups seeking to assume approximately 20 percent of the criminal defense caseload of the city's Legal Aid Society. The bids constitute a second round of the Mayor's plan to reduce LAS's role as the primary defender of criminal defendants unable to pay for legal representation. Only three of the 13 bids received in late 1995 were deemed adequate, with Brooklyn Defender Services and Queens Law Associates signing twoyear deals to handle cases in those boroughs, and Appellate Advocates hired to handle 200 Second Department appeals.
LAS fought last year's contracts. (See Legal Aid Society and Michael Iovenko v The City of New York, Supreme Court, New York County) and has filed a motion in US District Court seeking to enjoin the awarding of contracts.
Among the bidders are: Manhattan¾a group led by John Young, a group headed by Michael Butchen, and Neighborhood Defender Service of Harlem; Bronx¾a group including Allan P. Haber, a group led by Daniel Arshack and Robin Steinberg, Brooklyn attorney Vincent DelGiudice, and former Bronx prosecutor Matilde B. Sanchez along with Daniel O'Donnell; Staten Island¾three Brooklyn attorneys; First Department¾ Office of the Appellate Defender, a group led by Hillard Wiese, and two Manhattan appellate attorneys. (New York Law Journal, 12/31/96).
The New York State Bar Association is presenting the "Charles F. Crimi Memorial Award as the Outstanding Practitioner" to NYSDA board member Mark J. Mahoney of Buffalo. Others being honored during the annual meeting in New York City include: NYSDA member Robert D. Lonsky, Administrator for Assigned Counsel, Erie County Bar Association Aid to Indigent Prisoners Society, Inc., "Delivery of Defense Services" award; Bronx County District Attorney Robert T. Johnson (who was removed from a potentially capital murder prosecution by Governor Pataki when he would not immediately promise to seek the death penalty in a newlyopened case), "David S. Michaels Memorial Award for Courageous Efforts in Promoting Integrity in the Criminal Justice System;" Ursula Bentele, professor at Brooklyn Law School, "Criminal Law Education" award; the late Haywood Burns, former Dean of the City University of New York Law School at Queens College, "Service to the Bar and Community" award (posthumous); and several others, including Chief Judge of the State of New York Judith S. Kaye, New York Times reporter Lynda Richardson, Hofstra University School of Law Professor Monroe H. Freedman, and US District Court (Eastern District NY) Judge Jacob Mishler.
The Division of Public Defender Services in Connecticut has instituted a Committee to Preserve and Enhance Client and Professional Dignity. Formed with the idea that it would not be directed from the top, the committee is comprised of defenders from around the state. Meeting monthly, they identify and address a variety of issues concerning a perceived diminution of respect for client dignity by court personnel that sometimes includes acquiescence by defense team members.
Concrete problems that the recentlyformed committee has already taken on include oldstyle "cages" remaining in two courthouses in the state and newfangled "barrier" interview rooms in the planning stage, that cut off all direct attorneyclient contact.
Other identified problems that may spark future committee action include: changing the attitude of defenders who "go along" with procedures that diminish, or individuals who disparage, their clients; dealing with the controversial (even among defenders) matter of "group pretrials;" and mass advisement of defendants' rights over public address systems. The committee, through their publication, Discovery, invited anyone in the Division to submit concerns, anonymously if that is preferred.
The twelfth revision of "The Practice of Criminal Law Under the CPLR and Related Civil Procedure Statutes," by New York Court of Claims Judge Edward M. Davidowitz, is now available. Once again, most changes deal with motions to quash, protective orders and evidence, but nearly every chapter has seen some additions, revision and new case law. The revision includes 1996 legislative amendments, and is current through Volume 986 of the New York Law Reports advance sheets.
The manual, originally authored by Davidowitz and Judge John P. Collins in 1984 while members of the Criminal Advocacy Committee of the Association of the Bar of the City of New York, is now copyrighted. Copies are available from the Backup Center for $10.00.
Concluding that the criminal justice system should not tolerate perjury and evidence tampering from the very people trusted to enforce the law, a federal district judge has ordered a new Tompkins County trial for Carl E. Chamberlain. At Chamberlain's 1989 trial, several State Troopers and others testified about evidence linking Chamberlain's car to the hitandrun death of a 48yearold woman. Two of the troopers, David Harding and Robert Lishansky, were sentenced to prison in 1993 for evidence tampering as a result of the "Troop C scandal." When their perfidy was discovered, Chamberlain unsuccessfully asked state courts to overturn his conviction (TimesUnion 1/8/97, NYSDA files, and Electric Times Union [for copy of opinion] at http://www.timesunion.com/fyi/news/chamberlain.stm).
The special prosecutor investigating the Troop C evidencetampering scandal recently warned two New York State Police supervisors that they could face disciplinary action for their roles. The two, David McElligott and Karl Chandler, then retired. They supervised three investigators who admitted faking evidence (TimesUnion 1/8/97).
Most recently, two Troop C investigators were reassigned after completion of the preliminary report on evidence tampering. State Police Chief Inspector James Fitzgerald said the reassignments were not punitive (TimesUnion 1/11/97).
The Backup Center has kept abreast of the Troop C scandal as it unfolded, publishing information in the Report (e.g. 11/93, 12/94, and 2/95).
After consultation with Governor Pataki, the State Division of the Budget has determined that there is no statutory basis for government payment to paralegals or auxiliary counsel in capital cases. The Capital Defender Office, in the interest of getting payments to as many capital defense attorneys as possible, has agreed to deny pay requests on vouchers that include the disputed claims, so that undisputed claims can be paid. Some attorneys have been working for as long as a year without compensation in death penalty cases.
The governor's position is that payment for legal assistance is to be borne by counsel as overhead under the approved rates of $175 per hour for lead counsel and $150 for associate counsel, not by the state. The defense bar has consistently maintained during the process of setting of counsel fees that it is uneconomical to structure fees so that lead counsel or one associate handle tasks that could be done by paralegals or lessexperienced lawyers.
NYSDA board member Mark Mahoney, handling a Genesee County capital case, plans to challenge the ruling. The New York State Association of Criminal Defense Lawyers has said it will either fight the ruling directly or back a challenge brought by others. (New York Law Journal, 1/14/97.)
Two new names appear on the list of Chief Defenders invited to the Chief Defender Convening on February 7. John R. Kennedy is the Administrator of the Ontario County Assigned Counsel Plan in Canandaigua. Elbert H. Watrous, Jr., is the Schenectady County Public Defender.