The Court of Appeals recently approved compensation rates for
lawyers handling capital cases. New York Law Journal, November
22, 1996, p. 1. The rates, set at $175 an hour for lead counsel,
$150 an hour for associate counsel, $40 an hour for additional
lawyers, and $25 an hour for paralegals, will be reviewed in September
of 1997 to determine whether they are adequate to meet the statutory
requirement of ensuring that qualified attorneys are available
to represent indigent capital defendants. The Court also specified
that the new rates should apply retroactively to September 1,
1995, alleviating some concern of the capital defenders who have
been handling cases for the past 15 months.
Separately, the four departments of the Appellate Division issued a joint order setting expert fee rates in capital cases at $175 per hour for psychiatrists, $100 an hour for psychologists, $175 per hour for physicians, $100 an hour for certified social workers and $50 per hour for investigators.
At the request of the Superintendent of the Division of State
Police, Attorney General Dennis Vacco reviewed and reversed Formal
Opinion No. 86-F14, which had deemed the "reverse sale"
law enforcement technique impermissible. Reverse sales require
undercover police officers to possess and sell controlled substances
in the interest of apprehending drug offenders. Such techniques
by undercover officers do not fall within the enumerated exemptions
to the Public Health Law provided in section 3305(1)(b). In support
of the reversal, the Attorney General opined that Penal Law section
35.05 provides an exemption without impairing the integrity of
the Public Health Law. Penal Law section 35.05 authorizes conduct
by public servants, which would otherwise be unlawful, when justified
by certain enumerated circumstances. Thus, an undercover police
officer acting in the "reasonable exercise of his official
powers, duties or functions" may possess and sell controlled
substances for law enforcement purposes.
A copy of Attorney General Formal Opinion No. 96-F10 is available
at the Backup Center.
The State Family Court Judges Association issued a resolution
opposing as "haphazard and unfocused" an OCA plan to
use electronic recording devices that has "created chaos"
in multi-part Family Courts. New York Law Journal, 11/12/96,
p. 1. The Association criticized the enabling legislation as having
been implemented without consulting judges and with no uniform
OCA policy that considers the unique judicial environment of the
Family Court proceedings. The resolution also cited the lack of
proper equipment and problems with training court personnel to
handle recorders. (A letter from the Deputy Chief Administrative
Judge for Courts Outside New York City and the Adminsitrative
Judge of the Family Court of the City of New York in the November
20 New York Law Journal indicated that the Association's
input was welcome, and the the court system was soliciting comments
from all judges who have experience with electronic recording.)
A copy of the resolution and supporting memorandum is available at the Backup Center. Address written comments to: Justice David Roman, President, Family Court Judges Association, 39 Churchill Road, Oswego County Public Safety Center, Oswego, New York 13126.
Eastern District Court Justice Jack B. Weinstein continued the
Second Circuit's defiance of the United States Judicial Conference's
request that federal judges nullify local rules permitting camera
coverage of federal civil cases. The request, which came in March,
was declined by the Judicial Council of the Second Circuit, the
policy arm of the district courts. Judge Weinstein's order, which
permitted the broadcast of motion arguments in the case of Hamilton
v Accu-Tek, No. 95-0049, is in accord with two prior rulings
from Southern District justices that "the public should be
permitted and encouraged to observe the courts in the most convenient
manner possible, so long as there is no interference with due
process" and the dignity of the proceedings. Neither party
in the lawsuit objected to television coverage.
The Fourth Circuit is the only other federal circuit to refuse to eliminate local rules permitting televised coverage of proceedings. Eight other circuits have moved in compliance with the Judicial Conference's request, and three others have not yet acted. Cameras have never been allowed in federal criminal cases. New York Law Journal, 10/22/96, p. 1, col. 6.
In recent years, New York City prosecutors have been overwhelmed by a spate of desk appearance ticket cases for minor "quality of life" offenses. Heavy caseloads have caused delay in the filing of accusatory instruments, and defendants have routinely been inconvenienced by repeated adjournments prior to arraignment. Now prosecutors will adjourn these cases at their peril. In desk appearance ticket cases, CPL § 30.30 (5)(b) provides that the "criminal action must be deemed to have commenced on the date the defendant first appears in a local criminal court in response to the ticket." SeePeople v. Parris, 79 NY2d 69 (1992). According to a recent ruling by the Appellate Term, First Department, a defendant actually "appears" in court for speedy trial purposes when he shows up at the courthouse in response to an appearance ticket, even if the prosecution is not prepared to file an accusatory instrument and the case must be adjourned for arraignment at a later date. People v. Brisotti, NYLJ 10/29/96 at p. 26. The Court rejected the Bronx District Attorney's argument that a defendant does not make a "court appearance" until he actually comes before a judge to be arraigned.
State Supreme Court Justice Alvin Schlesinger resigned effective December 31, 1996, for several reasons best summarized as irreconcilable differences with the state's current criminal justice policies. As a veteran Manhattan judge, Schlesinger had repeatedly been asked to serve as a "death judge," one of a pool of judges chosen to try all of the state's capital cases. Rather than be pressured to serve, Schlesinger decided to step down, and is seriously considering becoming a capital defender. Other reported reasons for his leaving include the lack of judicial discretion in the sentencing of drug offenders and the lack of meaningful, rehabilitative programs in prisons. In sum, the 72-year-old Justice considers criminal justice policies today far too repressive. New York Post, 10/22/96, p. 6.
The ABA Section of Criminal Justice recently issued its 1996 Report
on the State of Criminal Justice, a compilation of the latest
national statistics on selective areas including crime, the criminal
justice response, sentencing, corrections and prisoners, juveniles,
minorities and case processing. According to Judge Cara Lee Neville,
immediate past chair of the Section, the report is intended to
provide a useful resource for those developing or assessing the
consequences of criminal justice policies. Concerns about changing
prison populations and a rise in juvenile crime, as well as a
leveling off of adult crime, are among the report's highlights.
The report includes graphs and charts, as well as extensive lists of sources and references, and sources of related state and local data. A copy of the Report is available from the ABA Service Center: (800) 285-2221 (cite product code #5090066). The price is $12 plus shipping and handling.
The New York County Lawyers' Association released its Report and Recommendations of the Drug Policy Task Force, declaring the nation's present drug policy a disaster. The 50-page report, issued in mid-November, calls for "a dramatic shift in thinking and approach in development and implementation of future drug control efforts." The 42-member Task Force found that the current drug policy with its emphasis on arrest, prosecution and incarceration of offenders has not managed to curb substance abuse or reduce violence related to the illicit drug trade. It recommends replacing the "penal" model with a public health model emphasizing education, vocational assistance and access to medical treatment. The Task Force, while not advocating the legalization of most controlled substances, does recommend the decriminalization of marijuana. The report recommends a 10-point plan for broad policy reforms, including:
A copy of the report is available from NYCLA, 14 Vesey Street, New York, New York 10007, (212) 267-6646; (212) 40-NYCLA (f); or at: http://www.drcnet.org/nycla.html and http://www.lindesmith.org/nycla.html
A major component of the Pataki Administration's policy of "right-sizing
the prison system" by increasing prison time for violent
offenders while diverting non-violent drug offenders to treatment
has met opposition from prosecutors. Empowered to divert approximately
3,400 drug offenders a year away from crowded prisons into 90-day
stays at the Willard Drug Treatment Campus on Seneca Lake, with
intensive supervision for up to another six months after returning
home, prosecutors keep sending eligible defendants to prison instead.
The New York Times reported in October that, with hundreds
of beds in the huge facility remaining empty, there is talk of
giving judges, rather than DA's, the power to send offenders to
Willard. New York Times, 10/21/96, p.B1.
Despite the slower-than-expected utilization of the Willard facility,
its creation remains significant, "the first acknowledgment
that mandatory sentencing of even repeat drug offenders is not
always the best policy," according to a November New York
Law Journal quote from Assembly Corrections Chairman Daniel
Feldman. The Willard program was implemented at the same time
dramatic increases were made in the state's mandatory sentencing
provisions.
In mid-November, The Department of Correctional Services notified
the Parole Board that;"it is the opinion of the Department
that all technical parole violators who are otherwise found suitable
for placement at Willard should be sent there regardless of their
personal wishes or expressed intentions concerning voluntariness
and meaningful participation."
The New York City Criminal Justice Coordinator, Katherine N. Lapp, recently named Isabel Alicea the new director of the Assigned Counsel Plan. Ms. Alicea had been the acting director since Laura Held stepped down. New York Law Journal, 11/12/96, p.1