Category Archives: New Legislation

New Decisions

There are new decisions from nearly every court!

First, the Court of Appeals (summaries of these will be posted later this week):

  • People v. Dreyden (Ct. App. 6/15/2010) (Pigott, J.) (6-1) – accusatory instrument deficient if it does not demonstrate how a knife is a "gravity knife"
  • People v. Mitchell (Ct. App. 6/15/2010) (Read, J.) (7-0) – transfer of case for probation supervision does not transfer authority to decide 440 motion 
  • People v. Ballman (Ct. App. 6/10/2010) (Lippman, C.J.) (7-0) – elevation of DWI for out of state conviction prior to 2006
  • People v. McLean (Ct. App. 6/10/2010) (Smith, J.) (4-3) – preservation of right to counsel violation claim
  • People v. Frederick (Ct. App. 6/10/2010) (7-0) – retrial issues

There are also new decisions from the First, Second, Third, and Fourth Departments, along with the Second Appellate Term.  (LC)

AD2 & AD4 – New Decisions

The Second and Fourth Departments have posted new decisions.  (LC)

Proposed Legislation Relating to Insanity Acquitees

When a person is found not responsible by reason of mental disease or defect, he or she is considered acquitted of the charge.  Nevertheless, an insanity acquitee can face many years of de facto incarceration at an Office of Mental Health secure or non-secure psychiatric facility.  The governing procedures for such confinement are in CPL § 330.20.

I came across two new bills that were recently introduced in the Assembly and Senate that relate to insanity acquitees:

  • S.B. 5466, introduced by Senator Schneiderman, would require a court to revoke an insanity acquitee's firearm license, inquire of the person whether he possesses any firearms, and order the surrender of the firearms to the authorities.  This law would also apply to "incapacitated persons" under CPL Article 730 and persons subject to civil commitment orders under the Mental Hygiene Law.
  • A.B. 8090, introduced by Assemblymember Gunther, would require insanity acquitees charged with designated offenses to register as sex offenders.

A.B. 8090 is by far the more controversial of the two bills.  It deviates substantially from the established principle that a verdict of not responsible by reason of mental disease or defect is, in fact, an acquittal.  Nevertheless, there is a strong public policy interest behind the legislation.  An insanity acquitee who was charged with a sex crime may, in fact, be more dangerous than someone who is found guilty.  Since the purpose of sex offender registration laws is to protect and inform the public about such dangers, the bill strikes me as a reasonable infringement on a patient's freedom.  (LC)

Thoughts on the Proposed Crime of Criminal Sale to Children

When I first read the proposed reform of the Rockefeller Drug Laws, A.06085, I was glad to see that it contained a provision that would add Penal Law § 220.48, Criminal Sale of a Controlled Substance to a Child.  Based on the title of the crime, I thought it would fill in a glaring hole in Article 220.  When an adult sells drugs to a child, there are special and unique public policy interests that come into play, including the protection of children from predators.  Criminal Sale In or Near School Grounds (Penal Law § 220.44), while laudably aimed at protecting children, only applies to sales that occur on school grounds or within 1,000 feet of such facilities.

Despite the optimistic nature of its title, a close examination of the proposed legislation reveals that it will not serve much of a purpose.  A person would be guilty of this crime when:

being over twenty-one years old, he or she knowingly and unlawfully sells to a person less than sixteen years of age a controlled substance in violation of any one of subdivisions one through six-a or subdivision nine of section 220.34 of this article.

The controlled substances referenced include narcotic preparations (controlled substances in Schedules III(d) or III(e), such as nalorphine or codeine, the latter in excess of a certain amount), methadone, ketamine, and GHB (the so-called "date rape drug").  Glaringly omitted from this list are narcotic drugs under Schedule I or II, such as heroin and cocaine.

The bill summary touts this provision as "elevat[ing] penalties" for the sale of drugs to children.  It is one of the few provisions of Article 220 that would still carry mandatory prison time.  However, it is ultimately a fairly ineffective provision.  By exempting narcotic drugs and marijuana, it removes any real teeth from the crime.  Heroin, cocaine, and crack are the most prevalent and dangerous street drugs.  I predict that very few persons will be prosecuted under the new Penal Law § 220.48.  (LC)

Proposed Amendments to the Rockefeller Drug Laws

Yesterday, the Assembly passed A.6085, which reforms the Rockefeller Drug Laws in several key respects.  The text of the bill can be quickly read in 15-20 minutes and I encourage all attorneys in criminal practice to do so.  Although the bill is reported as giving additional discretion to sentencing judges, it does much more. 

Among the key provisions that have been widely reported:

  • establishment of a drug court in each county. 
  • defendants can be ordered to undergo an alcohol or substance abuse assessment.
  • first and second offenders convicted of Class B, C, D, or E felonies can be sentenced to local jail, probation, or a split sentence.  The maximums have not changed, only the ability of judges to award these non-prison sentences at the low range.  These alternative-to-prison sentences do not apply to certain offenses and offenders with violent felonies in their histories.
  • offenders convicted of Class B, C, D, or E controlled substance crimes can be sentenced to a boot-camp style "Shock Incarceration Program."
  • courts' authority to dismiss a case, in the interest of justice, upon the defendant's successful completion of a diversion program, is crystallized.

There are additional provisions that have not been getting as much press:

  • alteration of the presumptions in Penal Law § 220.25 for possession in a car or room.  The presumptions will become permissible inferences instead.
  • the proposed legislation creates three new crimes, including Criminal Sale of a Controlled Substance to a Minor (a Class B felony), Trafficking Through a Controlled Substance Organization (a Class A felony), and Criminal Possession of a Weapon While Selling or Attempting to Sell a Controlled Substance" (a Class C felony).  Prison time is mandatory for all three of these crimes. 
  • courts can sentence offenders directly to the DOCS Willard Drug Treatment Program.
  • the law extends the eligibility of offenders to enter the DOCS CASAT program.
  • weight threshold limits for Class A-I and A-II offenses, which were not changed in 2004, are raised.
  • DOCS must establish reentry programs for prisoners.
  • any convicted person, regardless of sentence (probation, jail, prison, etc.), who has a documented history of substance abuse, must receive at least one year of substance abuse treatment.
  • certain convicted drug offenders — those who were convicted of pre-2005 indeterminate Class B felonies — can apply for resentencing under the determinate sentencing regime that was enacted in early 2005.
  • judges can seal drug convictions, including felonies (one) and misdemeanors (three), provided the defendant has remained crime-free or has completed a treatment program.
  • parole eligibility for Conspiracy in the Second Degree (a Class B felony) will become a determinate sentencing offense.