From David Weisfuse to All Panelists: 09:58 AMThere was a Court of Appeals case that criticized this practice in Westchester County where the ADA and not the judge did the voir dire on the plea. I do not believe the court reversed the conviction.

440 rights cannot be waived under Thomas, I thought.

From Ben Nelson to All Panelists: 10:13 AMYes, Thomas very strongly implies that - but one of the very few things that Judge Garcia’s dissent is correct about, in my view, is that the majority never clearly *holds* as much or offers any analysis. Just this: “The trial court's mischaracterization of appellate rights waived as encompassing not only an absolute bar to the taking of a direct appeal and the loss of attendant rights to counsel and poor person relief, but also all postconviction relief separate from the direct appeal, is even more serious than the conflated language in Billingslea.”

Look at the Sutton decision from the second department, which says judges shouldn't demand waivers of the right to appeal

People v Towns, 33 NY3d 326 (2019), would be another good authority to cite in support of an argument that the judge should not be the one requiring or proposing an appeal waiver. Different context - trial judge exceeded his authority when he negotiated a cooperation/testimony agreement with one co-D against another - but same principle.

From slevine to All Panelists: 11:51 AMThat is not how to conduct oral argument.

From James Auricchio to All Panelists: 12:02 PMjudge Nathan’s decision: https://www.scribd.com/document/476308986/Judge-Alison-Nathan-Calls-Out-SDNY

Is there a way to save the chat information?

It will all be saved.

E-mail us after and we will send you a link to the zoom recording. Or you can select all, copy, and paste into another document for safe-keeping.

Thanks.

Judge Nathan decision that Tim referenced: 2020 WL 5549931

https://www.law.com/newyorklawjournal/2020/09/17/annoyance-lawyer-loses-pro-se-appeal-targeting-alarm-com-over-robocalls/

Mr. Todd Bank lost a different case.

Yes.

Decision from Nathan, J.:

https://drive.google.com/file/d/1vS7SpDz8eNBrmwmP55q5SWU9w7P4Impc/view

I know. We're doing our best.

Thanks

From Kathy Manley to All Panelists: 02:11 PMThe RAI factors have never been empirically verified - this was discussed in People v. Santos, 25 Misc.3d 1212(A) (New York Co. 2009)

thank. you

Sorry about the connectivity issues during the beginning of this presentation. If that's the only technical issue for the day (knock on wood), I'll take it!

This is the link to the prior program I referenced regarding presence when arguing virtually.

https://nysacdl.site-ym.com/store/viewproduct.aspx?id=17104131

Thanks, Tim. Very timely!

Thank you, Tim!

These points are great,. As a line public defender it may possible to do an "engagement letter" with every new client in City Court or County Court. But, for appellate defenders, consider it. We do one for every pro bono client even when appointed by a court -- it provides a professional introduction, clarifies responsibilities, sets expectations, and makes them feel like what they are -- a human and a client just as important if they had retained you.

Goes right along with Tim Hoover's point on the importance of client communication.

From Dan Jackson to All Panelists: 03:39 PMIf you pursue any form of vacatur in order to assist a client get out of immigration consequences, please make sure to consult an immigration attorney, and also read Matter of Pickering, 23 I&N Dec. 621 (BIA 2003). Immigration "Judges" are allowed to look behind even a successfully granted vacatur and ignore it if they believe it was obtained for rehabilitative or ameliorative purposes...

From jjackson to All Panelists: 03:46 PMWould you say that the CPL 440.47 provisions might change this situation regarding hearings?

I'd say on those particular motions, if you satisfy the procedural prerequisites, you're far more likely to get a hearing. I don't think it changes a 440.10 motion though.

Re recant -- re that being the standard. But it's a new frontier. If pressure was brought to bear, threats, etc, by the police, you could be in business. The entire federal system is set up to reward the government to charge people to then flip them and offer them a reduced sentence. Go for it!

Another crim-imm suggestion: If you are dealing with a client who was not born in the U.S. and are considering a 440, remember the subsequent motion bar and screen for immigration-related possibilities (even if you already have a basis for a 440 and nobody is complaining about immigration consequences). Failure to advise on immigration consequences / failure to attempt negotiations to obtain a more immigration-favorable plea are both solid bases for a 440.10(1)(h) motion and could be considered waived if you don't raise them...

Awesome! Thank you!! Emily

Anna feel free to contact me directly to discuss or any of the panelists!

Thanks Oliver. And Nick and Susan fr putting it together. Tim

ntexido@assigned.org

Forms can go to me or Rvalkwitch@assigned.org

Third code was THU84

Thanks everyone!!!! Be safe and have a great weekend!