In a joint report, the Committees on Criminal Courts, Corrections, and Immigration and Nationality Law expressed support for City Council Int. 656-2011, which would place restraints on the New York City Department of Correction (DOC)・s practice of holding immigrants under U.S. Immigration and Customs Enforcement (ICE) detainers. Imposing some limits on DOC・s detaining immigrants at ICE・s request would protect the due process rights and other rights of its immigrant residents, and encourage the cooperation of immigrant communities in law enforcement. Specifically the bill would prohibit the use of New York DOC resources to honor a civil immigration detainer provided that the subject of the detainer (i) has never been convicted of a misdemeanor or felony; (ii) is not a defendant in a pending criminal case; (iii) has no outstanding warrants; (iv) is not and has not previously been subject to a final order of removal; and (v) is not identified as a confirmed match in the terrorist screening database. In addition, the bill would result in significant cost-saving to New York City.
National Standards to Prevent, Detect and Respond to Prison Rape
In light of a recent decision by the Second Circuit Court of Appeals, the Committee on Corrections Law sent a letter to the Department of Justice updating earlier comments to the Department concerning the proposed National Standard to Prevent, Detect and Respond to Prison Rape. This recent decision, Amador et al. v. Andrews et al., highlights the problematic uncertainty of the proposed PREA Standards about just what a prisoner must do to exhaust administrative remedies when reporting sexual assault by a prison officer, and what kind of notice prisoners receive about how to exhaust administrative remedies.
Luring a Minor on the Internet
As currently drafted, New York・s child luring statute may not be sufficiently broad to include luring via the internet. Proposed legislation A.2483/S.1096 would end this uncertainty by creating a new law covering the crime of luring or enticing a child on the internet. In its report on the proposed legislation, the Committee on Criminal Justice Operations argues that rather than creating a new law, the same goal can be achieved by simply modifying the existing penal law to expressly include luring via the internet.
The All Crimes DNA Act
The Committee on Criminal Advocacy expressed support for S.5560, the ：All Crimes DNA Act,； which would require the collection of a DNA sample from every person convicted of a felony or misdemeanor as defined under the New York Penal Law. Though mindful of concerns relating to the potential impact of this legislation upon civil liberties, the report concludes that the benefits of the proposed legislation, with regard to exoneration of the innocent and the effective and efficient enforcement of the criminal law, outweigh these concerns. The bill passed the Senate late last term but has not yet been acted on by the Assembly.
Crime Gun Identification Act of 2011
The Committee on Criminal Justice Operations’ report supports legislation that would require semiautomatic pistols manufactured by or delivered to any licensed dealer be capable of micro-stamping ammunition. Proponents of the bill believe that it will help curtail straw buyers (people who buy & register guns for themselves, then resell anonymously, for a profit) as the micro-stamping technology will permit matching of cartridge cassings to the specific weapon and its registered owner. Opponents of the bill claim this technology is overly expensive and not reliable. However, many law enforcement agencies support the legislation and the method has been praised as valuable and inexpensive. The legislation passed the Assembly but has not been voted on by the Senate.
Sensible Reform of the Rockefeller Drug Laws
The Committee on Corrections submitted an amicus in People v. Paulin & Pratts. Filed in the New York State Court of Appeals, the brief agues that under the 2009 Drug Law Reform Act, individuals serving long indeterminate sentences, like the Defendants-Appellants, should be eligible for resentencing to shorter determinate terms. Though the Defendants-Appellants meet the criteria to be eligible for resentencing, the Appellate Division ruled that Defendants-Appellants were categorically barred from seeking resentencing under the Act because they were in the Department of Corrections' custody following a parole violation and therefore should not benefit from that violation. The brief argues that this is inconsistent with the plain language of the Act and its goal of keeping nonviolent drug offenders out of prison and in treatment. The Court of Appeals agreed, ruling that "the rationale [of the act]'s applicable to parole violators, as it is to other imprisoned offendors."
Ineffective Assistance of Counsel
Currently, no statutory remedy exists in New York for claims of ineffective assistance of counsel that relate to appellate representation. In a joint report, the Committees on Criminal Justice Operations and Criminal Courts express general support for S.4472, which would codify claims of ineffective assistance of appellate counsel. The report recommends several modifications to the proposed legislation, including: any codification of coram nobis should relate solely to ineffective assistance claims and not more broadly; claims encompassed in the proposed legislation should also include the failure to perfect an appeal and the failure to file a timely notice of appeal; appellate courts should be allowed to consider or summarily reject successive applications; and the proposed legislation should authorize the appellate court in which the issue is raised to: (a) request input from appellate defense counsel, and/or (b) refer the matter to the trial court or a judicial hearing officer for a hearing and fact findings.
Padilla v. Kentucky --One Year Later
Co-written by the Criminal Courts and Criminal Justice Opertions Committees, this report examines the practices in the NYC Criminal justice system as it relates to noncitizen defendants since the 2010 Supreme Court decision in Padilla v. Kentucky. Padilla has reaffirmed that attorneys have a Sixth Amendment duty to provide noncitizen clients with affirmative advice on any immigration consequences of their pleas and convictions and that courts should also take a more active role in ensuring that defense counsel are meeting their obligation to advise noncitizen clients of immigration consequences.