NYCBA Members Newsletter

Welcome to the July 2006 issue of our Newsletter, our final issue until the Fall.

President's Message:

Thanks to all of the members of the New York Criminal Bar Association who came to the annual dinner on 6/5/06 and helped make this such a great celebration, attended by a capacity crowd of about 400 people on a beautiful summer evening at Tavern on the Green. And, special thanks:

To Gerry Shargel, whom we congratulate on receiving the Robert Louis Cohen Award "in recognition of his excellence in both trial and appellate practice, serving as a superb example of representation of the accused." The award is named in honor of Judge Cohen, who founded NYCBA in 1970, served as our President for eight years until going on the bench, recently retired as a Supreme Court Justice and is now serving as a Judicial Hearing Officer. In his remarks, Gerry noted the value of mentoring law students, not only to the students but to the experienced lawyer as well. I hope that NYCBA will be able to facilitate the mentoring process. Please let me know if you are interested in working with me on this project.

To Justice Michael Corriero, for serving as our as guest speaker and giving a moving speech about the importance of trying to salvage children accused of crime, using the metaphor from the movie, "A Bronx Tale", about pulling a boy out of a car headed for destruction. I hope that the NYCBA will take an active part in this effort. Please let me know if you are interested in participating in this endeavor.

To Gerry Lefcourt, for his superb introduction of Gerry Shargel.

To Donna Newman and Andy Patel, whom we congratulate for receiving a special award in recognition of “their extraordinary efforts to protect the constitutional rights of Jose Padilla in one of the most important “terrorism” cases of our time.

To the Dinner Committee: Co-Chairs Mathew Mari (NYCBA Vice President) and Genay Leitman, and Committee members Leonard Levenson (NYCBA Secretary), Michael Bachrach (NYCBA Treasurer), Neil Checkman and Nancy Ennis, for their efforts in helping make this dinner such a great success.

Have a great summer!

Yours for a better defense,

Henry J. Steinglass
President
(212) 406-7700
hjsteinglasslaw@earthlink.net

Second Seating:

If you want more federal experience and would like to second-seat a federal trial, for example, to enhance your application to the CJA panel, or if you have a short trial coming up, state or federal, and would be willing to have someone second seat you, please email Henry Steinglass and he will try to arrange it. Second-seating is a win-win proposition--the second-seater gets the experience; the trial lawyer gets an extra pair of hands, sometimes a very experienced person who can help with legal research, etc.

The Future Of Indigent Defense:

The NYS Commission on the Future of Indigent Defense issued a Final Report to the Chief Judge of the State of New York on 6/28/06 which concludes that indigent defense in New York is beyond salvation, and should be replaced with a new, state-wide, state-funded "Indigent Defense Commission" responsible for providing indigent defense services and with the authority to name a state chief defender. Defense providers would answer to this chief defender. (See, Report Calls for Replacement of Indigent Defense System," by John Caher, New York Law Journal, June 29, 2006.)

Some of us are concerned that this new state-wide defender system, if adopted, would eliminate a significant role for the private bar in providing indigent defense.

Easter District Dedicates Attorney's Lounge To Tom Concannon
And Charles Rose:

On June 22, 2006, the Eastern District of New York held a ceremony dedicating the attorneys's lounge on the 4th floor of the new building to Federal Defender Tom Concannon and AUSA Charles Rose, who touched the lives of so many in the courthouse community with their special warmth, and who died so young. Moving tributes, humorous and educational stories, and plaques were presented.

Richard Ware Levitt's Second Circuit Lecture Delivered On
June 15, 2006:

On, Richard Ware Levitt delivered his annual review of Second Circuit cases to approximately 100 lawyers in the ceremonial courtroom at 500 Pearl Street. Richard, who has served on NYCBA's Board, has been presenting NYCBA with CLE programs at the highest possible level for 20 years. Congratulations, Richard, on another superb performance. And, thank you so much. You have truly educated us and we look forward to your continuing to do so.

New NY State Sentencing Provision Signed Into Law On June 7, 2006

On June 7, 2006 Governor George Pataki signed into law an important change affecting sentencing in New York State. Penal Law §1.05(6) has been amended to add a new goal, "the promotion of their (defendant's) successful and productive reentry and reintegration into society..." (Chapter 98 of the Laws of 2006), to the four traditional sentencing goals of deterrence, rehabilitation, retribution and incapacitation.

The Center for Community Alternatives has prepared a "Justice Strategy" policy paper which explains the significance of the recent amendment and explores some of the questions and challenges faced with the introduction of reintegrative sentencing. For a copy of that policy paper, click here.

The Robing Room

North Law Publishers, Inc., the publishing company of Richard Ware Levitt, has created a new website - known as www.therobingroom.com - which has begun the task of collecting from lawyers all across the country candid evaluations about the Federal judges and magistrate judges in the U.S. and then posting them on this website. (See, for example, the comments posted to date on the Top Ten Judges and the Bottom Ten Judges.)

This is intended to be an anonymous collection of reviews and comments. If you post 10 or more complete ratings of judges, you will receive a free copy of the book, "Just The Rules," a $24.95 value. For more information about this offer and about The Robing Room, click here.

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:

• On the Decisions section of our Website, we have posted the following recent decisions:
  
  U.S. v. Rattoballi, No. 05-1562-cr, 2006 U.S. App. LEXIS 14940 (2nd Cir. June 15, 2006, as amended June 21, 2006), where the Second Circuit vacated a non-Guidelines sentence of home confinement, probation, and restitution, but no fine, on the grounds that: 1) the non-Guidelines sentence, which represented a substantial deviation from the recommended Guidelines range, was unreasonable; 2) the district court failed to include the specific reason for deviating from the Guidelines; and 3) the district court committed clear error in concluding that defendant lacked the ability to pay a fine. Numerous commentators immediately argued that much of the decision was confusing and at odds with the Court's previous rulings in United States v. Crosby, 397 F.3d 103 (2d Cir. 2006) and United States v. Fernandez, 443 F.3d 19 (2d Cir. 2006). See, for example, the excellent critical analyses of this decision posted on the Second Circuit Blog by Yuanchung Lee, entitled "Have the Mandatory Guidelines Been Reenacted?," and "Little New in the Amended Rattobelli Opinion." See also "Very Mixed Messages from the Second Circuit," as posted on the Second Circuit Sentencing Blog.
  
  
  U.S. v. Jeffrey Stein, No. 05 Crim. 0888 (LAK), 2006 U.S. Dist. LEXIS 42915 (S.D.N.Y. June 26, 2006) (Judge Kaplan), an 88-page decision by Judge Kaplan in which he ruled that a tactic used by prosecutors to crack down on corporate misconduct (as set forth in a controversial the Department of Justice memorandum known as the "Thompson Memorandum") violated the constitutional rights of employees of KPMG. For a more complete summary of this ruling, see "Federal Judge Blasts U.S. Pressure on KPMG Case Fees," by Mark Hamblett, New York Law Journal, June 28, 2006; and see "U.S. Tactic on KPMG Questioned," by Lynnley Browning, The New York Times, June 28, 2006.
  
  
  People v. Harper, 2006 N.Y. Slip Op. 04442 (App. Div., Second Dept., June 6, 2006), in which the Appellate Division announced a new standard for instructing juries in criminal trials before summations, saying previous precedents should no longer be followed. For a more complete summary of the ruling in this case, see "Standard Updated for Jury Instructions - Panel Cites Research on Criminal Trials," by Tom Perrotta, New York Law Journal, June 9, 2006.
  
  
  People v. Melendez, 2006 N.Y. Slip Op. 04336 (App. Div., First Dept., June 1, 2006), in which a panel from the Appellate Division sharply rebuked acting Supreme Court Justice Arlene R. Silverman for establishing a pattern over the last few years of consistently and improperly intervening in the questioning of witnesses. For a more complete summary of the ruling in this ruling, see "N.Y. Appellate Panel Rebukes Trial Judge for Pattern of Interference," by Mark Fass, New York Law Journal, June 5, 2006.
  
  
  People v. Dishaw, 2006 N.Y. Slip. Op. 04464 (App. Div., Third Dept., June 8, 2006), in which the Appellate Division held that "deceptive police stratagems" used to obtain confessions are fair game, so long as the deception does not rise to the level of a due process violation nor is likely to induce a false statement. For a more complete summary of this ruling, see "Panel Upholds Confession Obtained By A Lie," by John Caher, New York Law Journal, June 12, 2006.
  
  
  
• On the What's New Section of our Website, we have posted an article entitled "Deported Defendants: Challenging Convictions from Outside the U.S.," by Labe Richman, New York Law Journal, June 14, 2006, which maintains that what appears to be adverse appellate precedent should not preclude a challenge to a conviction by a defendant who is no longer in the United States.
  
  
  Also on the What's New Section of our Website, we have posted a copy of an interesting article entitled "Revised New York Drug Law Freed Kingpins," by Anemona Hartocollis, The New York Times, June 27, 2006, which reported that the city's special prosecutor for narcotics criticized the Rockefeller drug laws, saying that they benefitted major drug traffickers more than the low level offenders they were supposed to help.
  
  
  
• On the Legal Memoranda Section of our Website, we have posted an interesting law review article entitled "Why Judges Should Admit Expert Testimony on the Unreliability of Eyewitness Testimony," by Dr. Henry F. Fradella, Professor of Criminology, as published in the Federal Courts Law Review, June, 2006.
  
  

News From The Web:

• Reentry.Net/NY has begun posting a new New York Training and Events Calendar on its Website, which provides information about upcoming conferences, training sessions, meetings, and other events related to prison and jail reentry and the collateral consequences of criminal proceedings. The monthly calendar includes events that are geared to different sectors of the advocate community: social services, criminal defense, civil legal services, and policy reform advocates. Reentry.Net has also posted on its Website two significant reports dealing with the collateral consequences of convictions. Those reports are:
  
  Reentry and Reintegration: The Road to Public Safety -- Report and Recommendations of the Special Committee on Collateral Consequences of the New York State Bar Association. This report identifies the collateral consequences of criminal proceedings; the original purpose and intent of these often hidden sanctions; their usefulness as a societal sanction; and their impact on the ability of formerly incarcerated persons to reintegrate successfully into society. It includes consequences involving education, employment, disenfranchisement, immigration status, housing, and family reunification.
  
  Collateral Consequences of "Non-Criminal" Adjudications. This report by the New York County Lawyer's Association (NYCLA) calls for the immediate creation of a procedure to address the collateral consequences of convictions of disorderly conduct, harassment, and other low-level offenses which are not included in New York's definition of "crimes." The Report details the worsening problem of collateral consequences for these convictions, particularly with the advent of electronic databases.
  
  
  
• New York Legal Research Pathfinder, a collection of invaluable links to sources of law in New York State, compiled by Renee Cullmann, Librarian, Rutgers School of Law.

Professional Notices:

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.

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