Defense Continues Fight for Restoration of Funding ================================================== Defense lawyers from across the state continue to push hard for the restoration of state funding to NYSDA's Public Defense Backup Center, Aid to Defense, Indigent Parolee Program and Prisoners' Legal Services. The call for refunding these programs eliminated or cut in the FY-1996 Governor's budget is now being directed to the Legislature. On March 18, chief public defenders, NYSDA members and other criminal defense attorneys will come to Albany to urge legislators to restore these essential funds. On that day, a Special Report prepared by NYSDA in the Legislative Gazette will be released. The Special Report will discuss the right to counsel, the state of public defense services in New York and how this year's budget reductions in defense services threaten important constitutional protections. If you are interested in participating in the legislative day in Albany on March 18th, please contact the Association. Court Of Appeals Overrules People v. Bernier ============================================ Without bothering to write an opinion, the Court of Appeals has overruled People v. Bernier, 73 N.Y.2d 1006 (1989), an important motion practice strategy case. In Bernier, the Court held that a CPL 710.30 late notice claim (People v. O'Doherty, 70 N.Y.2d 479) is preserved for appellate review by a defendant's initial motion to preclude use of evidence at trial, and is not waived if the defendant moves to suppress it in the event the preclusion motion is denied. See also People v. McRae, 195 A.D.2d 180 (1st Dept. 1994); People v. Phillips, 183 A.D.2d 856 (2d Dept. 1992). In People v. John Merrill (February 15, 1996) the Court overruled Bernier, sub silentio, by reversing on the dissenting memorandum in the Appellate Division [212 A.D.2d 987 (4th Dept. 1995)]. The Appellate Division dissenters held that a defendant waives appellate review of a preclusion motion by moving to suppress the evidence at any stage of the proceedings. Defense counsel will now be faced with a choice between preserving the preclusion claim for appellate review, and moving to suppress the evidence at a Wade or Huntley hearing. Moving in the alternative will waive appellate review of the motion to preclude. The Court's willingness to bring about such a drastic change in preservation rules without writing an opinion is disturbing. It also comes about in the wake of Governor Pataki's scathing criticism of the Court's CPL 710.30 ruling in People v. Lopez, 84 N.Y.2d 425 (1994). Update on Sex Offender Registration/Community Notification Act =============================================================== The poorly drafted Sex Offender Registration/Community Notification Act went into effect on January 21, 1996. (See "New York's Sex Offender Registration/Community Notification Act: The Devil in the Details," November 1995 Public Defense Backup Center REPORT.) Predictably, law enforcement agencies have interpreted the vague terms of the Act in the light least favorable to defendants. The statute is being retroactively applied to offenders who were on parole and probation on January 21, 1996. Without notice or an opportunity to be heard, the Division of Parole and the Department of Probation and Correctional Alternatives (DPCA) have assigned risk classification levels (low, moderate, high) to all "sex offenders" who were under supervision on January 21, 1996, thus setting the stage for large-scale community notification in the months ahead. Those offenders classified as "sexually violent predators" are being notified that they must personally register with the police every ninety days for the rest of their lives. The classification is being done with a crude, one-page score sheet, in which points are arbitrarily assigned for various aggravating factors in the crime of conviction and the offender's previous record. 0 to 70 points has been designated as level one (low risk); 75 to 105 points carries a level two designation (moderate risk); and 110 to 300 points earns the offender a level 3 designation (high risk_"sexually violent predator"). Notwithstanding a score below 110 points, a defendant will be presumptively classified a "sexually violent predator" if any one of four "override" factors are found to exist: 1) a prior felony conviction for a sex crime; 2) infliction of serious physical injury or death; 3) a recent threat to re-offend by committing a sex crime or violent crime; 4) a clinical assessment that the defendant has a physical, psychological, or organic abnormality that decreases his ability to control impulsive sexual behavior. A copy of the score sheet and the Board of Examiners of Sex Offenders guidelines is available from the Backup Center. During the first week of February, 1996, parole and probation officers began notifying offenders of their classification level, and informing them of their right to take an administrative appeal. Apparently, the state will not provide parolees and probationers with a copy of their score sheet, or any other explanation as to how their risk classification level was determined. Nevertheless, they will be expected to file pro se written "appeals" of these decisions with the Division of Parole or DPCA within twenty days of their notification. As noted in the November Backup Center REPORT, it is far from clear that the Act provides statutory authority for the classification of "sex offenders" who were on parole or probation when the legislation went into effect. But even assuming the Act does provide for the classification of these offenders, the manner in which it is being accomplished is surely unconstitutional. How can the state justify treating sex offenders who were still in prison on January 21, 1996 differently from those who were on supervised release on that date? Inmates are entitled to notice, the appointment of counsel, and a court hearing before their "risk of re-offense" level is established. How, then, can a bureaucratic decision by a law enforcement agent, without notice to a counsel-less offender, without an opportunity to be heard, and without a statement of reasons for the decision satisfy due process and equal protection under these circumstances? See Doe v. Poritz, 662 A.2d 367 (New Jersey Sup. Ct. 1995) (court hearing required prior to classification of sex offenders under community notification provisions of New Jersey's sex offender registration act). Courts are applying the Act's community notification provisions to defendants presently being sentenced to probation. The Act's failure to provide for the appointment of counsel and a hearing in connection with the classification of parolees and probationers does begin to make sense if these offenders were never intended to be subjected to the Act's community notification rules in the first place. The Act can be read as limiting the community notification provisions to those sex offenders who are committed to the custody of the New York State Department of Correctional Services. However, at the initial sentencing proceeding, some courts have already begun to classify defendants sentenced to probation upon conviction of a "sex offense." Again, it is unclear that courts have this authority. For offenses committed prior to January 21, 1996, retroactive application of the community notification provisions raises obvious ex post facto problems. See, e.g. Artway v. Attorney General of New Jersey, 876 F.Supp. 666 (D.N.J. 1995) (Politan, J.) (Community notification provisions of New Jersey's sex offender registration act are punitive in nature and cannot be applied retroactively to defendants who committed crimes prior to the effective date of the legislation). Defendants who pleaded guilty without notice that they would be subject to community notification rules, and possible lifetime registration requirements, should also consider seeking specific performance of their plea agreements. Cf. People v. Danny G., 61 N.Y.2d 169 (1984). If advisable, a defendant might also wish to consider moving to withdraw the guilty plea as involuntarily entered. People v. Harris, 61 N.Y.2d 9 (1983). Courts are not required to inform defendants of collateral consequences of criminal convictions when accepting guilty pleas. See, e.g. People v. Ford, 86 N.Y.2d 397 (1995). But being publicly identified as a "sex offender," or worse, a "sexually violent predator," and forced to register as such, in some cases for life, can hardly be characterized as a "collateral" consequence of a criminal conviction. The Division of Criminal Justice Services plans to publically identify all levels of "sex offenders" on the "900 line." The Act requires DCJS to release information on the "900 line" in conformity with the risk classification levels defined in the statute. Although 168-l (6)(a) prohibits public dissemination of information about level 1 "sex offenders," DCJS plans to identify these defendants on the "900 line." Similarly, DCJS plans to release information about level 2 "sex offenders," regardless of whether the caller represents an organization "with vulnerable populations related to the offense committed" [168-1 (6)(b)]. The system is scheduled to begin operation on March 8, 1996. The phone call will cost $5. Self-Incrimination Shield Extended to Grand Jury Proceedings ============================================================ The Court of Appeals has ruled that a defendant who testifies before a grand jury cannot be cross-examined about unrelated pending charges. New York Law Journal, 2/9/96, p. 1. Although the right to testify in grand jury proceedings is only derived from statute, an accused "also has the constitutional right not to incriminate oneself regarding pending charges," the Court said in People v. Larry Smith, No. 3, 2/8/96. The issue arose when the defendant sought to waive immunity and testify before the grand jury in a $120 larceny case. When the grand jury judge ruled the prosecutor could cross-examine him about an unrelated perjury charge for impeachment purposes, Mr. Smith decline to testify. The Appellate Division, First Department, dismissed the indictment and the Court of Appeals affirmed based on its rationale in People v. Betts, 70 NY2d 289. That case held that defendants who waive their Fifth Amendment privilege in order to testify at trial cannot be cross-examined about unrelated pending charges. Writing for the majority, Chief Judge Judith S. Kaye said requiring a defendant "to forgo the Fifth Amendment protection and suffer incrimination as to unrelated pending charges would place a high constitutional price on the right to testify before the grand jury." She said that this would have a chilling effect on a defendant's choice of whether to testify and would undercut the Legislature's intent in providing a statutory right to appear. "This is particularly so" in a case such as Smith, she said, where the prosecutor conceded on the record that he intended to use the defendant's sworn grand jury testimony against him in the unrelated perjury case. Copies of the slip opinion are available from the Backup Center. Chief Defenders Adopt Resolution on Contract Bidding ==================================================== At a convening of the Chief Defenders of New York State held in Albany, New York, September 21, 1995, the following resolution was adopted. R E S O L U T I O N RE: CONTRACT BIDDING FOR DEFENSE SERVICES The Chief Defenders of New York State declare that low-bid, competitive contract bidding of constitutionally mandated adult and juvenile legal services is statutorily impermissible, inimical to the delivery of quality defense services and should not be engaged in by any municipality or governmental entity in the State of New York, nor should competitive contract bidding be utilized as a cost savings method. Appearance Letter by Defense Counsel Inadequate to Request Supporting Deposition ================================================================ Defense lawyers often differ over the value of requesting a supporting deposition in speeding cases. Although there is a clear statutory right to a supporting deposition, some defense lawyers believe that a request will only anger the prosecuting police officer and jeopardize later plea negotiations. Other defense counsel routinely ask for supporting depositions. Where a client must appear on a speeding ticket in a distant town and village court, many lawyers will typically notify a court by appearance letter that a defendant was entering a plea of not guilty and request a supporting deposition. A recent Court of Appeals decision, however, has invalidated this practice by holding that "defense counsel's appearance letter neither constituted nor dispensed with the need for an arraignment and therefore . . . the People were under no statutory obligation to furnish a supporting deposition." People v. Milburn Perry, No. 8, 2/8/96. The Court held that supporting depositions can only be requested after a defendant has been arraigned upon a simplified information and has submitted to the court's jurisdiction. The two exceptions to this rule are the use of the plea-by-mail provision of VTL 1806 within 48 hours of receiving the ticket and the entry of appearance by defense counsel in lieu of defendant for good cause (see CPL 170.10(1)(b). The Court specifically did not reach the question of whether the use of an appearance letter could ever qualify as an appearance under CPL 170.10(1)(b). Relatedly, there is currently legislation (S.5707-B) that is expected to become law this year that will generally require that requests for supporting depositions be made no later than 30 days after the date that a defendant is directed to appear in court.