Amicus Briefs 2010
The practice by the Queens County District Attorney’s Office of seeking to interview arrestees before their arraignment has been challenged by at least one Judge, Honorable Joel Blumenfeld. As a result of his recent ruling, the D.A.’s office filed an Article 78 proceeding against him. NYSACDL filed an amicus in the Appellate Division challenging the propriety of taking an Article 78 as improper. Brown v Blumenfled Nov 2010, Appellate Division, Second Department, 2010-09688. Article 78 Proceeding against Hon. Joel L. Blumenfeld, Queens County.
Sixth Amendment Right to Effective Assistance of Counsel
In a decision rendered May 6, 2010, the New York State Court of Appeals reinstated Plaintiff criminal defendants’ claim of ineffective assistance of counsel in Hurrell-Harring v. New York in which NYSACDL joined as amicus. At issue is the New York system of relegating standards and financing for appointment of counsel to indigent defendants to individual counties with the result, in certain counties, being the failure to appoint counsel at vital stages of the proceedings including arraignment and bail hearings. The actual decision turns on whether the claim is justiciable as an ineffective assistance of counsel claim alleging systemic failure where no one defendant has been convicted of a crime or otherwise sought post-conviction relief as a result of counsel’s alleged ineffectiveness. Read the amicus Brief
Ineffective Assistance – Standard of Review
NYSACDL joins NACDL in a Petition for Rehearing en banc before the U.S. Court of Appeals for the Second Circuit in Rosario v. Ercole, Dkt. No. 08-5521-pr; Motion for Leave to File Amicus Brief. At issue is New York State’s standard of review of ineffective assistance of counsel claims which falls short of the constitutional standard as announced in Strickland v. Washington. En banc review is warranted here as several panel decisions have questioned the constitutionality of the New York standard while others have held that it is not contrary to federal law. NYSACDL has joined the Petition for Writ of Certiorari to the Supreme Court: Rosario v. Griffin, 10-854
Sixth Amendment Right of Confrontation
NACDL and NYSACDL as Amici in People v. Treacy, Dkt No. 09-3939-cr, U.S. Court of Appeals for the Second Circuit, agrue on behalf of Appellant Treacy that the defendant’s Sixth Amendment Right to Confrontation cannot be abridged in favor of a testimonal privilege invoked by a journalist who was called as a prosecution witness.
Elements of the Offense: “Depraved indifference” in first degree assault
The New York Court of Appeals has ruled that the “depraved indifference” mens rea element in a first degree assault is not satisfied by proof of a defendant’s conduct in drinking to excess knowing that at some point, he would drive himself home. The defendant was too drunk at the time of the ensuing car crash to have fomed the requisite intent. The People, however, sought to establish that he knowingly created a grave risk of harm when he drank until extremely inebriated knowing that he would later drive. The Appellate Division reversed the first degree assault conviction finding that the defendant’s state of mind at the time he imbibed was too remote in time from the time he drove and wrecked into oncoming traffic. The Court of Appeals upheld the appellate court’s ruling. People v. Valencia, 58 AD3d 879, lv. granted 12 NY3d 790. NYSACDL along with the Nassau County Criminal Courts Bar Association as Amicus Curiae submitted a brief on behalf of respondent Albeiro Valencia before the Court of Appeals, People v. Valencia.
Sentencing: New York Persistent Felony Offender
NYSACDL recently joined NACDL as amicus in Phillip v. Artus, Portalain v. Graham, and Morris v. Artus, 06-3350 PR, Consolidated Appeals, U.S. Court of Appeals for the Second Ciruit. NYSACDL and NACDL urge the en banc Court to uphold the Panel decision in Besser v. Walsh, 601 F.3d 163 (2d Cir. 2010), which held that New York’s persistent felony offender sentencing scheme’s provision that a court, not a jury, make the necessary fact findings to support enhanced sentences runs afoul of the Sixth Amendment right to trial by jury, as applied to the states by the Fourteenth Amendment.