June 1996 Defender News
Governor Signs Legislation to Circumvent People v. Keindl
On June 5, 1996, Governor Pataki signed legislation that will significantly
affect the prosecution of child sex abuse cases in New York. The law is
designed to circumvent the Court of Appeals decision in People v Keindl, 68
N.Y.2d 410 (1986), a case which addressed pleading requirements in child sex
abuse prosecutions. In Keindl, the Court struck down counts of an indictment
charging the defendant with multiple acts of sexual abuse and sodomy, over
periods ranging from ten to sixteen months, as duplicitous and as violative of
the defendant's right to fair notice of the charges against him. Recognizing
that children under age eleven are often unable to pinpoint exact dates, the
Court adopted standards for case-by-case review of the sufficiency of the
pleadings in child sex offense cases, factors that were designed to facilitate
the prosecution of such cases while, at the same time, safeguarding the
defendant's right to fair notice of the allegations against him.
The legislation is designed to evade Keindl's case-by-case
analysis by creating a new crime, “course of sexual conduct against a child,”
and by characterizing it as a “continuing crime” analogous to endangering the
welfare of a child. Under this construction of the offense, a single count of
an indictment could charge the defendant with multiple acts of “sexual contact”
during a time period of at least three months. In other words, a single count
could allege multiple acts of abuse occurring over a span of years. The
legislation avoids the double jeopardy problem associated with duplicitous
counts of an indictment by barring further prosecution of the defendant “for
any other sexual offense involving the same victim unless the other charged
offense occurred outside the [designated] time period.”
The law also purports to relieve prosecutors of any duty to
specify the general time frame in which an individual act of sexual conduct is
alleged to have occurred. It also greatly expands the statute of limitations in
child sex abuse cases. The statute of limitations will be tolled until the
crime has been reported to a law enforcement agency or the statewide child
abuse registry, or, if unreported, until the victim reaches the age of
eighteen. This expanded statute of limitations applies to all “sex offense”
prosecutions involving victims under age eleven. In “course of sexual conduct”
prosecutions, the five year statute of limitations will be measured from the
most recent act of sexual contact.
The law takes effect on August 1, 1996. Consequently, it will be some
time before prosecutors will have an opportunity to fully exploit the law's
relaxed pleading requirements and expanded statute of limitations provisions.
This legislation raises serious due process and jury unanimity problems,
issues which will be addressed in a future article in the Report, as well as at
NYSDA's annual meeting in Lake Placid, August 15th-18th.
Penal Law §§130(10) and (11) provide:
Course of sexual conduct against a child in the first degree.
a) A person is guilty of course of sexual conduct against a child
in the first degree when, over a period of time not less than three months in
duration, he or she engages in two or more acts of sexual conduct, which
includes at least one act of sexual intercourse, deviate sexual intercourse or
aggravated sexual contact, with a child less than eleven years old. (Class B
violent felony)
Course of sexual conduct against a child in the second degree.
A person is guilty of course of sexual conduct against a child in the
second degree when, over a period of time not less than three months in
duration, he or she engages in two or more acts of sexual conduct with a child
less than eleven years old. (Class D violent felony)
Sexual conduct” means sexual intercourse, deviate sexual intercourse,
aggravated sexual contact, or sexual contact.
Aggravated sexual contact” means inserting, other than for a valid
medical purpose, a foreign object in the vagina, urethra, penis or rectum of a
child, thereby causing physical injury to such child.
The legislation also elevates intentional assaults against children under
age seven to Class D violent felonies. Penal Law §120.05(9) provides:
A person is guilty of assault in the second degree when:
(9) Being eighteen years old or more and with intent to cause
physical injury to a person less than seven years old, the defendant causes
such injury to such person.
L. 1996, chap. 122 (A. 948-b) (Establishes new crimes of “course of
sexual conduct against a child;” greatly extends the statute of limitations for
child “sex offense” prosecutions; elevates minor assaults against young
children to assault in the second degree) Effective date: applies to offenses
committed on or after August 1, 1996.
Court of Appeals Approves Capital Counsel Fees
The New York State Court of Appeals recently approved compensation rates
for appointed counsel in capital cases up to $175 an hour for lead counsel and
$150 an hour for associate counsel.
After reviewing proposed fee schedules submitted by each of the
Departmental Screening Panels and receiving public comments on the proposed
rates, the Court made several determinations regarding capital defense
compensation. In a June 10, 1996, letter to the Departmental Screening Panels,
the Court stated that:
1) the compensation for lead and associate counsel, assigned at trial, on direct appeal, or on the initial CPL article 440
proceeding or appeal, will be approved at a uniform, statewide rate;
2) an attorney's in-court and out-of-court work will be compensated at the same rate;
3) the Screening Panels may, in their discretion, set reduced rates for
attorney travel time;
4) Judiciary Law section 35-b(5)(a) authorizes compensation for reasonably necessary
legal and paralegal assistance shown to promote the efficient and economical delivery of
defense services; and
5) any consideration of a “cap” on compensation for capital defense counsel must await
the accumulation of sufficient information on New York's experience with death
penalty litigation under the new death penalty statute.
The approved compensation rates, while substantially lower than those
initially recommended by each of the Screening Panels, have been the subject of
criticism by the Governor and others who view the rates as excessive.
Aggravated Harassment of a Correctional Employee: New Felony Effective June 14th
On May 30th, Governor Pataki signed a bill establishing the new crime of
aggravated harassment of a correctional employee by an inmate, a Class E
felony, carrying an enhanced maximum sentence of up to five years imprisonment.
The new section 240.32 of the penal law provides:
An inmate or respondent is guilty of aggravated harassment of an employee
by an inmate when, with intent to harass, annoy, threaten or alarm a person in
a facility whom he knows or reasonably should know to be an employee of such
facility or of the division of parole or office of mental health, he causes or
attempts to cause such employee to come into contact with blood, seminal fluid,
urine or feces, by throwing, tossing or expelling such fluid or material.
The section applies to inmates in state or local correctional facilities,
and to inmates committed to mental hospitals during the course of their
incarceration. It also applies to juvenile offenders under commitment in DFY
secure facilities. CPL section 220.10 (5) has been amended to prohibit plea
bargaining once a defendant has been indicted for this Class E felony offense.
In an apparent compromise to avoid classifying the offense as a Class D
felony, the Legislature has provided for an enhanced maximum term of five years
imprisonment in the second felony offender category (e.g. 2<$Esize 9 1/2> to 5
years). Imprisonment is not mandatory for first felony offenders convicted of
this non-violent offense. However, first felony offenders who are sentenced to
state prison face a maximum term of four years.
Finally, Correction Law section 851 has been amended to deny inmates
convicted of the offense from eligibility for temporary release programs,
including the work release program (L. 1996, c. 92).
Henry Schwarzschild, Head of NCADP, Dies at Age 70
Henry Schwarzschild, a major architect of and head of the New York office
of the National Coalition to Abolish the Death Penalty founded in 1976, died of
cancer on Saturday, June 1, 1996. His life was spent advancing the cause for
civil liberties, and against racism and capital punishment.
Most recently, as director of NCADP, Mr. Schwarzschild had denounced the
use of lethal injections in executions. "It is precisely because it falsely
appeals to the sense of medical technology and efficiency and humaneness and
painlessness that it is intended to make the process of sentencing people to
death and executing them easier on everybody. That is the true horror of it.” "
Born in Weisbaden, Germany and living in Berlin during the rise of
Nazism, he was made "enormously, prematurely conscious of the world around
[him]," he later recalled. His sensitivity to issues of "political liberty,"
though forged there, continued to develop when he and his family arrived in
Manhattan in 1939. Here, he received his bachelor's degree from City College of
New York and did graduate work in political theory at Columbia. In the 1950's,
he worked as an executive of the International Rescue Committee, the American
Committee for Cultural Freedom, and the Anti-Defamation League of B'nai B'rith.
He was active in the civil rights movement in the 1960s, and according to Fred
Powledge, a historian of civil rights activism, Schwarzschild was known "to
turn up anytime the Movement needed help.”"
He was executive director of Lawyers' Constitutional Defense Committee
from 1964 to 1970. From 1972 to 1990, he was on staff at the American Civil
Liberties Union and was director of their Capital Punishment Project for more
than 15 years until he retired.
NYSDA's Executive Director, Jonathan E. Gradess, stated upon returning
from the Memorial Service held on June 4, “He was a very deep and committed
friend of the Association's staff, membership and its work¾he will be sorely
missed.”
On June 1, 1996, M. Catherine Richardson, a partner in the Syracuse law
firm of Bond Schoeneck & King, became the second woman ever to be elected
president of the 62,000-member New York State Bar Association (NYSBA), the
largest voluntary state bar association in the nation. Richardson served as
president-elect over the past year, presiding over the state bar's House of
Delegates and serving as co-chair of the NYSBA President's Committee on Access
to Justice. She also served as vice-president for the NYSBA 5th Judicial
District and was a member of various committees.
In addition to her NYSBA activities, she is a member of the board of
directors of the Onondaga County Bar Foundation and the Hiscock Legal Aid
Society. She is past president and former director of the Onondaga County Bar
Association, and currently serves on the board of visitors of Syracuse
University College of Law and the college council of the State University of
New York at Oswego. Ms. Richardson is also a member of the American Bar
Association and its Foundation, and the American Law Institute. A graduate of
SUNY Oswego, she received her master's degree from the University of Northern
Colorado and her law degree from Syracuse University College of Law.
Backup Center Loses Staff Attorneys
After many years of dedicated service, staff attorneys Stacy Wolf and
Michael Creaser recently left the Backup Center.
Stacy Wolf came to the Association in January 1990 from the Legal Aid Society
of New York City, Juvenile Rights Division Appeals Unit and Nassau County Legal
Aid Society Appeals Unit. In addition to her regular Backup Center
repsonsibilities, she handled much of the Association's amicus work, prepared
training materials and served as editor of the last issue of The Defender. She
taught in the Post-Conviction Clinic at Albany Law School and continues to
lecture there on persuasive legal writing.
Michael Creaser, staff attorney since graduating from Albany Law School
in 1993, began his tenure at NYSDA while still a law student. In addition to
handling legal research requests from the field, he served as editor of the
Backup Center REPORT. Michael is currently a staff attorney at the Committee on
Professional Standards of the Appellate Division, Third Department.
The entire staff at NYSDA wish both Stacy and Mike the best in their future
endeavors.