NYCBA Members Newsletter

Happy Holidays and welcome to the December 2005 issue of our Newsletter.

President's Message:

As you work on your holiday gift list and New Year's resolutions, I urge you to
take a moment to think about the need to improve the criminal justice system in ways big and small -- from

1) legislation which sometimes appears at first to be so difficult to stop, like extension of the PATRIOT Act per the present House-Senate conference report--rejected by the Senate 52-47 on 12/16/05, but further action is expected within the next few days because a 3-month extension was rejected and the Act is set to expire on 12/31/05 (see copies of my letters to Senators Schumer and Clinton on this issue); to

2) the daily frustrations of practice, like not being able to bring a cell phone or Blackberry into the SDNY and EDNY courthouses, although prosecutors can.

Consider also how we may be able to make maximum use of what we have a lot of (experience) without impacting what we have so little of (extra time)--for example, by volunteering to take a "second-seater" for trials, especially a federal trial to provide a colleague with the necessary experience for a successful CJA application, or any trial to provide those who have just left a prosecutor's office with defense experience, or to enhance or polish trial skills. It's a win-win situation - you get an extra set of hands and a grateful colleague, who gets invaluable trial experience.

Please let me know if you are interested in taking a second-seater (and note if you have a trial scheduled in early 2006) and any other ideas you have about what we can do to make the criminal justice system better in 2006 than it is now.

Finally, as this is traditionally a time of year for helping those less fortunate, please remember Hurricane Katrina disaster relief. One good way to contribute is through the NACDL's Hurricane Disaster Relief Project.

All the best for the holiday season and the New Year!

Annual Holiday Party:

At NYCBA's annual holiday party on 12/8/05 at S.P.Q.R. restaurant, Hon. Bruce Allen, Justice of the N.Y.S. Supreme Court (Acting), and a new judge, Hon. Anthony J. Ferrara, Civil Court Judge sitting in N.Y.C. Criminal Court (Manhattan) were honored.

NYCBA Board member Fred Sosinky introduced Judge Allen, giving examples of his patience and fairness in sentencing [Click here for a copy of Fred's comments], and presented Judge Allen with a plaque "for excellence in upholding the highest traditions of the judiciary, serving for years as an inspiration to those working to provide justice in our courts." Click here for a photo of the presentation of that award; the photo shows NYCBA Board member Frederick Sosinsky, who made the presentation, Judge Allen, and Henry Steinglass, the president of the NYCBA.

A plaque was also presented by NYCBA Board member Lou Aidala to Judge Ferrara "for excellence in serving as a new judge and in upholding the highest traditions of the judiciary." Click here for a photo of the presentation of that award; the photo shows Judge Allen, and NYCBA Board member Louis Aidala, who presented the award.

With terrific music from Judge Adlerberg's band, an enjoyable evening was had by all.

Annual Dues:

With the New Year approaching quickly, we would like to take this opportunity to remind everyone that your New York Criminal Bar Association dues for 2006 are due on Jan. 1st.  For 2006, annual dues remain $100.  Payments may be made by sending your check, made payable to the “New York Criminal Bar Association,” to Michael K. Bachrach, NYCBA Treasurer, 1040 Avenue of the Americas, 24th Floor, New York, New York, 10018. 

Payments may also be made by faxing or emailing your credit card authorization to Mr. Bachrach at (866) 328-1630 or mbach2000@yahoo.com, or by submitting your credit card information online at our website.  To make your payments online, go to http://www.nycrimbar.org, then click on the “Events” button and follow the prompts.  Alternately, if you have already logged into the Members Section of our website, simply select “Events” from the “Members Info” drop-down tab, and follow those prompts. 

If you have any questions regarding membership dues please call Michael at (212) 382-4621, or email him at the above email address.  A copy of our Membership Application/Renewal Form is attached to this newsletter for your convenience.

New Second Circuit Electronic Filing Rules Now In Effect:

On Thursday, December 1, 2005, the Second Circuit's new Local Rules 25 and 32(a) became effective. New Rule 32 essentially requires counsel in all cases to submit a digitized version of any brief filed, in PDF format, via e-mail to the Circuit, in addition to the 10 paper copies of the brief already required.

Rule 32 also requires counsel to submit a certification, both in writing (to be filed with the paper copies of the brief) and electronically (in PDF format, along with the PDF version of the brief), that the brief has been scanned for viruses and that it is virus free. A more detailed summary of the new Rules and a sample "Anti-Virus Certification" can be accessed by clicking here.

New Rule 25 additionally requires that for all papers filed with the Court, including briefs, motions, letters, and appendices, counsel must submit in addition an unbound copy of the same. (This is intended to facilitate the Court's effort to scan these documents, if it so desires). The only exception to this rule is that counsel need not submit an unbound paper version of a brief that has been submitted electronically, in PDF format, pursuant to new Rule 32.

Reentry.Net/NY:

Last month, we briefly noted the existence of this Website, which is sponsored by a large group of important criminal defense organizations, including The Bronx Defenders, The Legal Aid Society of New York, The Correctional Association of New York, The New York State Defenders Association, the Fortune Society, and the Center for Community Alternatives. We have now joined Reentry.Net (membership is free) and have had an opportunity to review its resource center.

The self-described purpose of this Website is to provide "a clearinghouse of materials for advocates on the consequences of criminal proceedings in New York State"; and the site contains a fabulous collection of many hard-to-find resources relating to that topic. Just a listing of some of the topics covered on this site gives an indication of the scope of the many valuable resources that are available on this site for members of Reentry.Net:

• Consequences of Criminal Proceedings in New York - A 36-page guide prepared by The Bronx Defenders for criminal defense attorneys and other advocates for persons with criminal records;
  

• Criminal Records - A collection of resources on criminal record sealing, rap sheets, juvenile records, Certificate of Relief from Disabilities and Certificate of Good Conduct;
  

• Employment, Licensing & Military - A collection of guides and sample practice materials on rap sheets, occupational licensing, employment denials, terminations, and other forms of discrimination based on criminal records;
  
  
  
• Public Benefits and Welfare - A detailed guide to the public benefits that are available to persons with criminal records or open warrants;
  
  
  
• Monetary Benefits & Forfeiture - A collection of resources, including memos from The Legal Aid Society and sample motions from The Bronx Defenders;
  
  
  
• Vital Documents - A time-saving "how-to" guide; and
  
  
  
• Immigration - A compilation of practice materials and client materials for criminal defenders, legal and other service providers with clients in the criminal justice system. Many of these resources are links directly to the NYSDA Immigrant Defense Project and the Defending Immigrants Partnership. 

The Samuel Alito Database:

The folks at AskSam database company have created a terrific, free, searchable database of the Published Opinions of Judge Samuel Alito. Right now there are at least 350 opinions contained in the database, which you can view online, or on your own computer (after a quick download).

NYCBA Web Site Features:

Each month, we try to point out some of the latest resources that we have posted on our Website at www.nycrimbar.org/. In keeping with that tradition, we note the following items:

• We have posted under the "Briefs and Motions-Legal Memoranda" button, two informative articles written by Gary Muldoon, Esq. of Rochester, NY, who is the author of author of Handling a Criminal Case in New York (West Group 2006). The first of those articles describes the "New Rules for the Court of Appeals in Criminal Cases," which went into effect in September, 2005. The second article is entitled " Defense Counsel’s Role in Presentence Investigation." Both articles have been posted on the Monroe County's Assigned Counsel's Website at www.mcacp.org/index.html.
  
  
  
  
• On the What's New section of our Website, we have posted an article entitled "The Adversarial System in Criminal Cases: Achieving Justice?," by Jay Goldberg, that was published in the New York Law Journal, Nov. 17, 2005.
  
  

• We have also posted on the What's New section of our Website an article entitled "Circuit Upholds State's DNA Database Statute," by Mark Hamblett, which was published in the New York Law Journal, Nov. 30, 2005, and which discusses the Second Circuit's decision in Nicholas v. Goord, No. 04-3887-cr (2nd Cir. Nov. 28, 2005).
  
  
  
• Finally, we have posted some revealing information about New York's much heralded Drug Law Reform Act of 2004 (DLRA), which was enacted by the New York State legislature last year. At the time it was passed, Gov. Pataki stated that the purpose of the DLRA was to reduce what he said were "unduly long sentences" imposed for drug crimes; and he predicted that "hundreds" of nonviolent drug offenders would be released from prison. Well, the Legal Aid Society has now issued a Special Report entitled "One Year Later: New York's Experience with Drug Law Reform," and a Fact Sheet, both dated Dec. 14, 2005, which show that the new laws have barely made a dent in changing previously imposed drug sentences. In addition, we have posted an article entitled "Legal Aid Report Says Drug Reform Has Fallen Short," by John Caher, New York Law Journal, Dec. 19, 2005.
  
  

News From the Web

• The Sentencing Project has published a new and interesting report entitled "Incarceration & Crime: A Complex Relationship," which is now available online.
  
  
  
• FindLaw has launched a new and informative Family Law Center on the Internet at http://family.findlaw.com/ which includes a comprehensive collection of laws, forms and other resources on its five main topics: Adoption, Child Custody, Child Support, Divorce and Separation, and Marriage and Living Together.

Case Notes:

Expert Testimony on False Confessions
by NYCBA Board Member Dan Hochheiser

Is the phenomena of false confessions the proper subject of expert testimony during a criminal trial in New York?

There are no appellate decisions in New York yet, but two Nassau County Court Judges, presiding over murder cases, have recently reached opposite conclusions. In People v. Kogut, 2005WL2402689 (Sept. 15, 2005), Judge Victor M. Ort, after a lengthy Frye hearing, admitted the testimony of Saul Kassin, a psychology professor at Williams College. Judge David Sullivan, however, denied admission of expert testimony on the subject in People v. Jeannot, No. 167N-05 (Sept. 19, 2005)(Trial Tr. 467), finding that such testimony was not generally accepted within the courts of the Second Department and made reference to People v. Ragsdal (Kings Co. Sup. Ct, April 2, 2004) in support of his decision.

Comments and Newsletter Contributions Welcome

Comments on this and future issues of this Newsletter are most welcome, as are your own stories about cases, issues, arguments, events. etc. - whether just a sentence or a paragraph to alert us to a recent development, or a longer piece. Please send your material to Scott Tulman, Chair of the Internet and Newsletter Committee at Tel.: (212) 867-3600 or email: stulman@aol.com - or send your comments by email directly to our committee at: nycrimbar@nyc.rr.com.

Yours for a better defense,

Henry J. Steinglass
President
(212) 406-7700

Internet and Newsletter Committee:
Scott Tulman, Chair
Harvey Fishbein
Michael K. Bachrach
Peter G. Schmidt