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Criminal Appeals and Post-Conviction Practice - Shared screen with speaker view
Assigned Counsel Program
01:11:16
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.
David Klem
01:16:46
440 rights cannot be waived under Thomas, I thought.
Assigned Counsel Program
01:24:00
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.”
David Klem
01:51:01
Look at the Sutton decision from the second department, which says judges shouldn't demand waivers of the right to appeal
Ben Nelson
01:53:32
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.
Assigned Counsel Program
03:02:16
From slevine to All Panelists: 11:51 AMThat is not how to conduct oral argument.
Assigned Counsel Program
03:13:12
From James Auricchio to All Panelists: 12:02 PMjudge Nathan’s decision: https://www.scribd.com/document/476308986/Judge-Alison-Nathan-Calls-Out-SDNY
jjackson
03:17:36
Is there a way to save the chat information?
Assigned Counsel Program
03:17:47
It will all be saved.
Assigned Counsel Program
03:18:28
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.
jjackson
03:18:59
Thanks.
Spencer Durland
03:46:35
Judge Nathan decision that Tim referenced: 2020 WL 5549931
Timothy Hoover
04:03:12
https://www.law.com/newyorklawjournal/2020/09/17/annoyance-lawyer-loses-pro-se-appeal-targeting-alarm-com-over-robocalls/
Timothy Hoover
04:03:24
Mr. Todd Bank lost a different case.
Timothy Hoover
04:12:49
Yes.
Timothy Hoover
04:12:54
Decision from Nathan, J.:
Timothy Hoover
04:12:58
https://drive.google.com/file/d/1vS7SpDz8eNBrmwmP55q5SWU9w7P4Impc/view
Assigned Counsel Program
05:06:42
I know. We're doing our best.
Assigned Counsel Program
05:08:35
Thanks
Assigned Counsel Program
05:22:05
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)
Emily
05:22:39
thank. you
Assigned Counsel Program
05:28:39
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!
Timothy Hoover
05:33:48
This is the link to the prior program I referenced regarding presence when arguing virtually.
Timothy Hoover
05:33:52
https://nysacdl.site-ym.com/store/viewproduct.aspx?id=17104131
Assigned Counsel Program
05:35:00
Thanks, Tim. Very timely!
Emily
05:35:04
Thank you, Tim!
Timothy Hoover
05:52:58
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.
Assigned Counsel Program
05:56:01
Goes right along with Tim Hoover's point on the importance of client communication.
Assigned Counsel Program
07:03:01
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...
Assigned Counsel Program
07:04:52
From jjackson to All Panelists: 03:46 PMWould you say that the CPL 440.47 provisions might change this situation regarding hearings?
Assigned Counsel Program
07:05:37
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.
Timothy Hoover
07:25:55
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!
Dan Jackson
07:39:11
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...
Emily
07:46:45
Awesome! Thank you!! Emily
Timothy Hoover
07:46:48
Anna feel free to contact me directly to discuss or any of the panelists!
Timothy Hoover
07:47:09
Thanks Oliver. And Nick and Susan fr putting it together. Tim
Assigned Counsel Program
07:48:43
ntexido@assigned.org
Assigned Counsel Program
07:49:08
Forms can go to me or Rvalkwitch@assigned.org
Assigned Counsel Program
07:49:21
Third code was THU84
Assigned Counsel Program
07:49:35
Thanks everyone!!!! Be safe and have a great weekend!