October 1998 Defender News

from NYSDA's Public Defense Backup Center REPORT

Ray Kelly, Tim Rountree Selected for Denny Ray Awards
The recipients of the 1998 Denison Ray Awards of the New York State Bar Association, for staff attorneys providing criminal defender services, are Raymond A. Kelly, Jr., an assistant public defender in Albany for over 20 years, and Timothy B. Rountree of The Legal Aid Society (LAS) Capital Defense Unit in New York City. The announcement was made in early October, with formal presentation of the awards scheduled for the luncheon being held during NYSDA's Chief Defender Convening on the 30th.

Kelly, who is on the faculty of the Defender Institute Basic Trial Skills Program that NYSDA holds annually, is well known in the defense community and beyond for his zealous representation of clients, his knowledge of the law, and his generosity. Giving of his time, his resources, and his compassion, Kelly has been lauded not only by his colleagues in law but by the client community and even the press. A Times Union editorial following the reversal of a notorious Albany case for prosecutorial failure to comply with discovery mandates said that it would be easy, and misguided, to criticize Kelly for pursuing the legal issue that led to reversal, and added, "Mr. Kelly did precisely what a defense attorney, under his constitutional mandate is supposed to do: fight for the legal rights of his clients."

Rountree began his legal career as a staff attorney at LAS, and later became a trial advocacy trainer there. With the reintroduction of the death penalty in New York, he became a founding member of the LAS Capital Defense Unit. Along with Colleen Brady and Russell Neufeld, Rountree tried the case of Darrel Harris in Brooklyn, which generated intense and negative publicity and ultimately resulted in the first death sentence to be imposed under the 1995 statute.

Even before Darrel Harris was formally sentenced to death-an occasion on which his attorneys issued a moving statement about their client's post traumatic stress disorder, about the passions inflamed by the death penalty during the case, and about the racism and futility inherent in capital punishment-Rountree began jury selection in another capital case.

As Rountree's supervisor and colleague Neufeld has observed, to immediately follow the tremendous pressures of the state's first capital trial with another long, high pressure murder case is more than should be asked of anyone: "To go through all this and consistently maintain the highest standards of zealous representation deserves the Denison Ray Award."

Assistant AG Removed as ADA
Assistant Attorney General Karl Sleight was appointed by Franklin County District Attorney Andrew Schrader as an Assistant District Attorney to assist in the prosecution of non-capital murder and other charges against Joseph Mileto. Sleight did not live in Franklin County. Mileto challenged Sleight's appointment under Public Officers Law §3, which requires holders of local office to be residents of the relevant political subdivision or municipal corporation. The Supreme Court agreed that Sleight could not continue to serve, while noting that the challenge was not a jurisdictional one so that any actions already taken by Sleight were not invalidated.

Mileto's early challenge of Sleight distinguished this case from the jurisdictional challenge brought in a CPLR article 78 proceeding in Haggerty v Himelein (89 NY2d 431); because the failure to satisfy the residency requirement is nonjurisdictional, it may be waived by failure to raise the issue. Mileto timely objected.

A copy of the September 9, 1998 opinion in Mileto v Sleight et al is available from the Backup Center, thanks to Mileto's attorney, Northern Franklin County Public Defender Alex Lesyk.

Pending Court of Appeals Cases Cataloged
A list of significant criminal cases pending in the New York Court of Appeals, with the issues presented, has been made available to other public defense lawyers via the Backup Center by Robert Dean, Attorney-in-Charge of the Center for Appellate Litigation in New York City. Updated in mid-September, the list includes three cases awaiting decision: People v John Laraby-did a third party's unauthorized removal of life support equipment from a comatose assault victim constitute a supervening cause of death, relieving the defendant of criminal liability for the death; and Matter of Angel A-was the delinquency petition charging third-degree sale sufficient, and particularly were the officers' expertise in field-testing drugs and the reliability of the test procedures established in the supporting deposition; People v Christopher Allen-were the allegations sufficient to support fifth-degree solicitation charges where the sole basis was an unsuccessful effort to buy marijuana.

Also listed are 20 cases scheduled for argument, 13 cases waiting to be scheduled, and 16 cases in which leave is newly granted. To receive a copy of the list, contact the Backup Center.

A Sad Victory in Dutchess County
When a client died in prison after being re-incarcerated on a probation violation, the Dutchess County Public Defender Office sought not only to have the pending appeal abated by death, but to have the probation violation finding and underlying complaint dismissed pursuant to People v Matteson, 75 NY2d 793 and People v Mintz, 20 NY2d 770. The prosecution's efforts to limit those cases to appeals from criminal convictions were unsuccessful. The 2nd Department dismissed the appeal on September 11 and remitted the case to the County Court for proceedings consistent with Mintz. A copy of the papers filed by both prosecution and defense, along with the order in People v Douglas W. Smith, are available from the Backup Center, thanks to NYSDA Board Member and Dutchess County Chief Assistant Public Defender David Steinberg.

Meanwhile, in Illinois, an intermediate appeals court has found that the addition of a "victim's rights" amendment to the Illinois constitution mandates a change in that state's rule that the death of a defendant during the pendancy of an appeal abates the conviction. When an offense does not involve a violent crime or implicate individual crime victims' interests, the abatement rule still applies. But where there are victims, the abatement option is cut off. Pointing to statements that a manslaughter victim's family hoped the conviction and sentence would help them cope with their loss, the majority said that vacating the conviction would have a "senselessly harsh impact" on the survivors. A dissenting justice maintained that the appeals court could not just distinguish a state Supreme Court ruling out of existence, and noted that some strange results might come from such an application of the victim's rights provisions. People v Robinson, Ill AppCt 1st Dist, Nos. 1-96-1695 etc. (8/7/98); 63 CrL 566.

Fact Finding Hearing Deadline Extended
Final planning was underway for four fact finding hearings on public defense across New York as this issue of the REPORT went to press. The statewide effort to document the current state of public defense services is being sponsored by NYSDA, the League of Women Voters of New York State, and the League chapters in each metropolitan area where hearings are to be held-New York, Rochester, Syracuse, and Albany.

The deadline for signing up to testify at the final hearing, to be held in Albany on December 1, has been extended to November 24 to ensure that no one is missed due to time constraints. The three earlier hearings are scheduled for October 14 (New York City), October 20 (Rochester), and November 10 (Syracuse). Details about the hearings, including the general categories of information sought (such as Financing of Public Defense, Relationships with Outside Entities, and Improving Public Defense Services in New York State) were set out in the last issue of the REPORT. Copies of the announcement are available from the Backup Center.

Jenna's Law Training
NYSDA staff attorney Al O'Connor recently presented a multi-media CLE training program in Poughkeepsie, Buffalo and Brooklyn on the topic of sentence calculation rules under Jenna's Law. A fourth training session will be part of a criminal law update trainer scheduled for October 17th in Syracuse. Jenna's Law has introduced a new layer of complexity to New York's complicated sentencing laws. The training program explains how felony sentences will be calculated under Jenna's Law, with special emphasis on the new system of "post-release supervision" terms. The program features easy-to-follow, step-by-step illustrations of the new sentence calculation rules, and is designed to enable criminal defense attorneys to consistently provide accurate information to clients about release dates and possible sentence exposure under the harsh new law. For a copy of the materials, contact the Backup Center.