Defender News - December 1995 Governor's Budget Eliminates Funding for Backup Center ====================================================== The FY '96-97 Executive Budget totally eliminates funding for NYSDA's Public Defense Backup Center. The Governor has a 30-day period_until January 15, 1996_to amend the budget and restore the funding. If the State Budget isn't amended, the Backup Center will be forced to close case intake and prepare to shut down its office. The Backup Center has for 15 years helped the state and counties carry out constitutionally-required defense services by providing defense lawyers across the state with research, training and technical support. Without the continuation of these cost-effective Backup Center services, the quality of representation will diminish and county governments will be required to appropriate additional funds to fill the budget gap for mandated public defense services. The elimination of the state appropriation for the Backup Center also comes at a time when many public defense budgets have been cut by local governments. Other Defense-Related Cuts =========================== The Governor's proposed budget also eliminates or reduces the funding to other programs critical to defense services. Prisoners' Legal Services and the Indigent Parolee Program were eliminated from the budget. Aid to Defense funding was decreased by 27 percent from over $13 million to about $10,045,000, while State Aid to Prosecution remained at last year's level. IMMEDIATE ACTION NECESSARY ========================== It is critical to let the Governor and other state and local officials know how important Backup Center services are to you and your county. Please write to the Governor, to your state legislators and to Assembly Speaker Sheldon Silver and Senate Majority Leader Joseph Bruno urging restoration of this critical funding. Please copy in the Association. <%0> Minimum Standards Set for Capital Defense Attorneys =================================================== The Court of Appeals recently approved minimum standards for attorneys to qualify for appointment in capital cases. New York Law Journal, 12/5/95, p. 1. The court approved, with only minor editorial changes, the proposed qualification standards it released in October. The Court's action clears the way for the four Appellate Division screening panels to begin receiving applications for appointment in capital cases. Some 16 organizations or individuals, including the Defenders Association, submitted comments to the court prior to final approval. Updated Monograph on Criminal Practice under the CPLR Available =============================================================== New York Court of Claims Judge Edward M. Davidowitz has again updated his monograph "The Practice of Criminal Law Under the CPLR and Related Civil Procedure Statutes." This, the eleventh revision, includes relevant statutory provisions enacted in 1995 and cites case law current through Volume 933 of the New York Law Reports advance sheets. While most of the changes involve motions to quash, protective orders and evidence, there are additions, revisions and new relevant case law in almost every chapter. Judge Davidowitz originally authored the publication with Judge John P. Collins in 1984 when both were members of the Criminal Advocacy Committee of the Association of the Bar of the City of New York. Copies are available from the Backup Center at a cost of $10.00. County Law 722-c Fee Determinations Not Subject to Appellate Review ==================================================================== The Court of Appeals, in Matter of the Director of the Assigned Counsel Plan (No. 245, 12/21/95), has ruled that court-ordered compensation for experts assigned to indigent defendants is not subject to appellate review. New York Law Journal, 12/22/95, p. 1. The dispute arose out of services that were rendered by respondent Hillel Bodek, a certified social worker, in connection with several criminal cases in New York City. Although County Law 722-c limits compensation to $300 per case except in "extraordinary circumstances," judges awarded Mr. Bodek fees averaging more than $3500 per case. They also ordered the city to pay him at the rate of $100 per hour despite a guideline of the chief administrator which sets the maximum rate at $45 per hour. In affirming the Appellate Division's ruling, the Court of Appeals rejected the city's attempt to rein in the annual cost of its assigned counsel program based on the Court's prior ruling in Matter of Werfel v. Agresta, 36 NY2d 624. That case held that fee awards for assigned counsel are not subject to appellate review. In a per curiam opinion, the Court stated that: "Such orders are essentially administrative in nature and, accordingly, are not amenable to judicial review on the merits by an appellate panel." The Court directed that despite the potential for anomalous consequences, "the problem can and should be addressed through the available administrative tools." Defense lawyers seeking administrative review of fee claims in excess of the statutory limits should make use of 22 NYCRR 127.2(b) which provides: b)<~>Upon proper application, the order of the trial judge with respect to a claim for compensation in excess of the statutory limits may be reconsidered by the trial judge in consultation with the administrative judge of the court in the judicial district where the order was issued. The application shall be filed with both the trial judge and the administrative judge. Please notify the Backup Center of any cases you have involving issues relating to attorney or expert fee claims in assigned cases. DCJS Issues Proposed Rules on Forensic DNA Testing ================================================== On December 6, 1995, the Division of Criminal Justice Services issued regulations establishing an accreditation program for laboratories performing forensic DNA testing. The regulations adopt, for a two-year interim period, the standards endorsed by the American Society of Crime Laboratory Directors/Laboratory Accreditation Program. In addition, the regulations establish notification procedures to "designated offenders" who will be required to provide a blood sample for the "State DNA Identification Index." These rules will apply to persons convicted on or after January 1, 1996 of any of the offenses set forth in Executive Law 995(7). Notice of the regulations is published in Volume XVII, Issue 49 (December 6, 1995) of the New York State Register. Public comment on the proposed regulations will be accepted until 45 days after the publication notice. Court of Appeals to Review DWI Prompt Suspension Law ==================================================== Pringle v. Wolfe, a Supreme Court, Wayne County decision will present the Court of Appeals with an opportunity to determine whether New York's DWI "prompt suspension law" (VTL 1193[2][e][7]) violates due process. The Court has agreed to hear the case on direct appeal by the prosecution. Edward L. Fiandach of Rochester, a noted DWI defense expert, represents the plaintiff and is expected to argue the case in late February or early March. Over the past months, trial courts have continued to address the constitutionality of the "prompt suspension law" (VTL 1193[2][e][7]). As reported in past issues of the REPORT, the statute has been successfully challenged in several lower court cases on various constitutional grounds (See July/August 1995 and February 1995 issues of the REPORT). Another recent lower court decision addressing the statute concluded that the statute does not violate the Double Jeopardy Clause. People v. Robert Pugsley, NYLJ, 11/29/95, p. 1. Citing Barnes v. Tofany, 27 NY2d 74 (1970), Greene County Court Judge Daniel K. Lalor ruled that the primary purpose of suspension pending prosecution "is remedial rather than punitive." Greene County Public Defender Greg Lubow represents the defendant. As reported in the November issue of the REPORT, the state Assembly's Committee on Transportation is in the process of holding public hearings to examine the law's effectiveness. Lippman to Succeed Milonas as Chief Administrative Judge ======================================================== Judge Jonathan Lippman has been named Chief Administrative Judge of the state's Unified Court System to succeed E. Leo Milonas. Judge Lippman served as a Court of Claims Judge since last summer. Before being appointed to that position by Governor Pataki, he served as Deputy Chief Administrator for Management Support and Chief Clerk of State Supreme Court in Manhattan. Justice Milonas, who has been Chief Administrative Judge since June 1993, will return to the Appellate Division, First Department. Can Double Jeopardy Bar Criminal Prosecution After Prison Disciplinary Proceedings? ================================================================================ === Greene County Public Defender Greg Lubow has recently argued in at least two criminal cases that administrative punishment imposed upon an prison inmate in connection with the comission of a crime is a bar to subsequent criminal prosecution. Relying on United States v. Halper, 490 US 435 (1989), Lubow presented this argument in People v. Allaway, a Greene County Court case. The County Court considered the argument but rejected it in light of the substantial body of precedent from the Third Department. He also initiated an Article 78, Matter of Cordero v. Lalor, arguing that the Third Department has never considered the applicability of Halper under these circumstances. He recommends that until the issue is conclusively resolved, lawyers handling Tier III proceedings and criminal cases arising from the same incident should read Halper and consider raising the double jeopardy argument. Law Office Search Guidelines Issued by US Department of Justice =============================================================== In response to the potential for violating the attorney-client relationship in cases where an attorney is the subject of a federal prosecution, the United States Justice Department recently issued policy guidelines on searches of the subject attorney's premises. The guidelines discuss items such as alternatives to search warrants, prosecutorial requirements before seeking judicial authorization for the search warrant, safeguarding procedures for conducting the search and review procedures. The guidelines were reprinted in BNA's Criminal Law Reporter at 58 CrL 2007. Earlier this year the Justice Department also promulgated computer search guidelines, which are reprinted in the Criminal Law Reporter at 56 CrL 2023.