In the recent case of People v. Washington, 86 NY2d 853 (1995), the Court of Appeals held that, in order to commence the 30 day time period for filing of a notice of appeal, defense counsel must serve notice of entry of all favorable trial court orders appealable by the People under CPL §450.20. This means that counsel must serve formal notice of entry on the district attorney, even if the decision was announced in open court, or the court otherwise mailed a copy of it to the parties. In Washington, counsel failed to serve notice of entry of an order dismissing the indictment, thereby allowing the People to take what would otherwise have been an untimely appeal.

In an unusual grant of a federal writ of habeas corpus, the Second Circuit has reduced an Orange County man's sentence of 20 years to life under the Rockefeller drug laws to time served (six years) on the ground that defense counsel's failure to advise his client to accept a plea bargain and sentence of 1 to 3 years imprisonment constituted ineffective assistance of counsel. Oscar Boria was arrested in 1988 and charged with criminal sale of a controlled substance in the second degree, an AII felony. The district attorney offered to permit Boria to plead guilty to a Class B felony in exchange for a sentence of 1 to 3 years imprisonment, but threatened to file a superseding AI felony indictment if the offer was rejected. Defense counsel conveyed the offer to Boria, but did nothing to persuade him to accept it after Boria protested that a guilty plea would "embarrass him in front of his children." Boria was subsequently convicted after trial of criminal sale of a controlled substance in the first degree and sentenced to 20 years to life.

Contact NYSDA for the inside section of the Public Defense Backup Center REPORT which contains an up-to-date table of Lesser Included Offenses, courtesy of the NY Defender Digest. (pp. 4-7).

Reviewing the case after Boria's claim of ineffective assistance of counsel had been repeatedly rejected by the trial court, the Appellate Division, and the federal district court, the Second Circuit held that defense lawyers must counsel clients about the advisability of accepting or rejecting a plea bargain. In this case, defense counsel privately thought rejection of the plea bargain was "suicidal," but never expressed this opinion to Boria because he was certain Boria wanted to go to trial to avoid admitting guilt to his children. Given the severe consequences of a trial conviction, the Court held that counsel's omission constituted ineffective assistance of counsel. Interestingly, among the shortcomings noted by the Court was counsel's failure to enlist defendant's family members in the effort to persuade Boria to plead guilty to the reduced charge.

[Defense counsel] admitted . . . that his client - like any other person - was capable of changing his mind. Yet he did nothing to persuade either his client or the father by whom he had been retained of the absurdity of a decision to risk years of prison separation from his family to avoid a few hours of embarrassment in front of his children . . .

Had [defense counsel told the defendant and the defendant's father] . . . of his professional judgment that it was almost impossible for a `buy and bust' defendant to obtain an acquittal in Orange County, there would have been more than a `reasonable probability' that the father would have organized the family to persuade petitioner not to pursue the suicidal course he seemed bent on following.

The relief granted by the Second Circuit was also unusual. The Court noted the impropriety - if not legal impossibility - of vacating the conviction and reoffering the defendant an opportunity to accept the plea bargain. Instead, the Court simply reduced the sentence imposed on the AI felony conviction to "time served," approximately six years, on the theory that it represented twice the maximum term that would have been imposed had the petitioner received the effective assistance of counsel.

Robert Isseks of Middletown, NY represented Boria in this habeus corpus proceeding (Boria v. Keane - 952688, 5/3/96).

Defendants must request, in person or via mail, supporting depositions for traffic tickets within 30 days of the date on the appearance ticket - regardless of when they make their initial appearance before the court for arraignment. This change pursuant to a recent statutory amendment to CPL 100.25 requires that timely requests for supporting depositions be made "before an entry of a guilty plea and before commencement of a trial on the charge, but not later than 30 days after the date the defendant is directed to appear in court, as that date appears on the simplified information and appearance ticket" (L. 1996, c. 67). If the defendant's request is mailed to the court, it must be mailed within the thirty day period.

The statute, as amended,requires an appearance ticket, as defined in CPL 150.10 (1), "provided in conjunction with a simplified information, to include language notifying defendants of the 30 day limitation. If an appearance ticket fails to include the notification, a defendant may still make a timely request for a supporting deposition a) within thirty days of entry of a not guilty plea when the defendant has been arraigned in person, or b) within thirty days of written notice to the defendant of his or her right to receive a supporting deposition, when a plea of not guilty has been submitted by mail." See CPL 100.25 (2).

The stated purpose of this amendment was to curtail the effects of defendants appearing in court, well after the date of the original appearance ticket, entering a plea of not guilty, and then having thirty days to request a supporting deposition. Currently, the longer a defendant waits to appear, the greater the likelihood that the issuing officer will be unavailable to appear, or unable to provide a supporting deposition. If the officer is unable to provide a supporting deposition, the court must dismiss the charge for facial insufficiency.

The statutory change will be a problem for individuals who properly need to obtain legitimate adjournments for their court appearance, that extend beyond the thirty days, but fail to request the supporting deposition by mail within the required period.

Filing a late request is only authorized if at least one of the offenses charged is a misdemeanor. In that case, the court may, "upon motion of the defendant, for good cause shown and consistent with the interest of justice, permit the defendant to request a supporting deposition beyond the thirty day period provided, that no motion may be brought after ninety days have elapsed" from the date the defendant is directed to appear in court. See CPL 100.25 (3).

The amended law also changes the requirement that a defendant be "charged by" rather than "arraigned upon" a simplified information before he or she is entitled to a supporting deposition. This change affects the recent Court of Appeals decision in People v Milburn Perry, No. 8, 2/8/96; which held that defendants are not entitled to a supporting deposition until they properly submit to the court's jurisdiction at arraignment. (See "Appearance Letter by Defense Counsel Inadequate to Request Supporting Deposition," February 1996 Public Defense Backup Center REPORT.) A copy of the chapter law, effective October 27, 1996, is available at the Backup Center.

Joint public hearings were held by the Assembly and Senate on April 24 in Albany and April 26 in New York City to assess the impact of both the sentencing changes enacted in the Sentencing Reform Act of 1995 and the sentencing reforms proposed by the Governor in this year's budget. Numerous judges joined with representatives from groups such as the New York State Defenders Association, the New York State Bar Association, the New York City Legal Aid Society, the New York State Association of Criminal Defense Lawyers, the National Association of Criminal Defense Lawyers, the Correctional Association and others to warn that substantially increasing minimum sentences and eliminating parole for first time violent felony offenders will devastate the criminal justice system. The testimony of the judges focused on how the sentencing reforms would take discretion away from the judiciary and place it in the hands of prosecutors, who would be able to set minimum sentences by the plea bargains offered. Witnesses further testified that defendants facing these harsh determinate sentences will choose to go to trial rather than plea bargain, thereby causing court congestion, jail overcrowding, and eventually the release of offenders on speedy trial grounds. Representatives of the public defense community told panel members that public defense offices would need more money to handle the additional work associated with these increased penalties.

The hearings also addressed a recent report by Senator Catherine Abate, "Dollars and Cells: An Analysis of Governor Pataki's Sentencing Reforms and Proposals." The report concludes that this year's sentencing changes combined with those made last year will require $3.5 billion for prison expansion over the next 10 years. Explaining the genesis for the report, Senator Abate wrote: "When making profound decisions that will affect the State for decades to come, it is imperative that objective and comprehensive information be provided to members of the criminal justice community and State lawmakers . . . yet Governor Pataki has offered no cost analyses of the 1995 Sentencing Law or the proposed 1996 changes" (see "Dollars and Cells: An Analysis of Governor Pataki's Sentencing Reforms and Proposals," January 1996, pp. 12). Paul Shechtman, New York State Director of Criminal Justice, who supports the sentencing reforms, testified that the impact of the sentencing changes on prison space would not be as great as reported in Senator Abate's report.

The Assembly and Senate also held a public hearing on April 23 in Albany on Governor Pataki's 1996/97 juvenile justice proposals which would increase sentences for violent juvenile offenders and require the transfer of juvenile offenders into the Department of upon their 16th birthday. An additional purpose of the hearing was to assess the effectiveness of the New York State Division for Youth. Witnesses included Paul Shechtman, York State Director of Criminal Justice; John Johnson, Director, New York State Division for Youth; Judge Michael Corriero, New York State Supreme Court; Rose Washington, Executive Director, Berkshire Farms and Services for Youth; and representatives from groups such as Statewide Youth Advocacy, New York City Legal Aid, Juvenile Rights Division, Neighborhood Defender Service of Harlem, the Juvenile Detention Association of New York State and the Association of New York State Youth Bureaus.

In October of 1994, NYSDA filed an amicus brief in support of the appellant in People v. Eric Wilson, a case involving the authority of a legal aid attorney to continue representing a client after formal charges have been dismissed. In Wilson, the defendant was charged in Brooklyn with criminal possession of a weapon and criminal possession of stolen property. He was represented by a legal aid attorney, Norman Berle. Queens homicide detectives wanted to question Wilson and place him in a lineup in connection with a murder in Forest Hills. The detectives appeared at Wilson's next court appearance in Brooklyn, and arranged for the pending charges to be dismissed. But before the case was called, Berle discovered that the detectives were waiting to take Wilson into custody. He visited Wilson in the courthouse pens, where Wilson asked Berle to continue to represent him "no matter what." Berle then repeatedly told the detectives he continued to represent Wilson, who was not to be questioned or placed him in a lineup without counsel present. Berle repeated these instructions to the detectives in open court when Wilson's case was called and the charges were dismissed.

Ignoring Berle's instructions, the Queens detectives then arrested Wilson, interrogated him about the murder, and placed him in a lineup without counsel present. Wilson was identified in the lineup and charged with murder.

The trial court refused to suppress the lineup identification, ruling that there was no right to counsel violation because the "prior attorney-client relationship between the defendant and [Berle] had been extinguished by operation of law upon dismissal of the Brooklyn charges."

On April 15, 1996 a divided panel of the Appellate Division, Second Department, reversed Wilson's murder conviction, suppressed the lineup identification, and ordered a new trial. Writing for the plurality, Justice Friedmann held that legal aid attorneys have the same authority to protect their clients' rights as private attorneys do:

In our system, lawyers represent clients, not cases, so that the dismissal of the Brooklyn charges had no impact upon the relationship between Berle and the defendant. In addition, there is no authority for the proposition that Berle could only continue to represent the defendant in the Queens matter subject to a new judicial assignment. Rather, as in any attorney-client relationship, Berle represented the defendant if Berle and the defendant agreed that he did.The majority also held that Wilson's right to counsel had indelibly attached by Berle's entry into the murder investigation, and that Wilson could not waive the right without his attorney present.

Justices Pizzutto and Hart dissented, expressing the factually incorrect view that Berle had acted unilaterally when he decided to continue to represent Wilson after the Brooklyn charges had been dismissed.