NYCBA Members Newsletter

Happy Holidays and welcome to the December 2006 issue of our Newsletter.

President's Message:

Last December, my President’s message asked you to consider, in making your New Year’s resolutions for 2006, the need to improve the criminal justice system in ways big and small. Of course, the need is never-ending but, to paraphrase an old saying, that is not an excuse to avoid doing what we can.

Similarly, this year, I again ask you to make a New Year’s resolution to do one thing (or more) to help--such as taking on a second-seater, working on a NYCBA CLE program or amicus brief, suggesting an issue or problem which you would like to work on, sending updates about your cases for publication in this Newsletter, posting your motions and briefs on the NYCBA website’s bulletin board, or joining a NYCBA Committee (see below).

This is a time of change, especially with a new Governor in Albany and the new Congress in Washington. So much is going on, for example, calls for indigent defense reform, changes in the election of NYS Supreme Court Justices pursuant to Justice Gleeson’s decision (affirmed by the Second Circuit), and the opening the Manhattan Integrated Domestic Violence Part expected in January 2007.

Please resolve to work with NYCBA to make the most of our challenges and opportunities in 2007.

Yours for a better defense,

Henry J. Steinglass,
President (212) 406-7700
direct email: hjsteinglasslaw@earthlink.net


Annual Dues:

With the New Year approaching quickly, we would like to take this opportunity to remind everyone that your New York Criminal Bar Association dues for 2007 are due on Jan. 1st. For 2007, annual dues remain $100. Payments may be made by sending your check, made payable to the “New York Criminal Bar Association,” to Michael K. Bachrach, NYCBA Treasurer, 276 Fifth Avenue, Suite 501, New York, New York, 10001. Payments may also be made by faxing or emailing your credit card authorization to Mr. Bachrach at (866) 328-1630 or michael@mbachlaw.com.

If you have any questions regarding membership dues please call Michael at (646) 797-2776, or email him at the above email address. A copy of our Membership Application/Renewal Form is attached to this newsletter for your convenience.

NYCBA Committees And Areas Of Interest:

When you renew your membership, please consider joining a NYCBA Committee or working on an issue, CLE program, amicus brief, or other project. You may indicate the committee or area you are interested in on your membership renewal form or by contacting the chair/contact person listed below:

Upcoming Elections - New Officers And Directors Nominated:

On December 11, 2006, Antony Ricco, who served on the NYCBA Board of Directors from 1999 to 2002, was nominated by the Board for President. Genay Leitman, a longtime Board member and co-chair of the Dinner Committee, was nominated for Vice President. Andrew Eibel, a Legal Aid supervisor in Brooklyn, and Edward Wilford, were selected by the Board to fill director vacancies. The election will be held at NYCBA’s annual meeting in February 2007 (more details and date to be announced).

NYCBA Honors Justice Ward At Annual Holiday Party:

At NYCBA’s annual holiday party on 12/5/06 at S.P.Q.R. restaurant, Hon. Laura A. Ward, N.Y.S. Supreme Court (Acting), was honored. NYCBA Treasurer Michael K. Bachrach introduced Justice Ward, stating that the defense bar was extremely grateful for the innovation she has brought to the bench through her role as the Part N judge, and that every defense attorney that comes before her quickly learns the fairness and even-handedness she brings to the proceedings.

President Henry Steinglass then presented Justice Ward with a plaque on behalf of NYCBA “for excellence in upholding the highest traditions of the judiciary and for serving as an inspiration to those working to provide justice in our courts.” [Click here for photo of the presentation of the award.]

In her remarks, Judge Ward talked briefly about her work in Part N, which has almost an 80% success rate, and how rewarding it is see defendants who have been on drugs for years, who never held a job, become sober, working, studying and reunited with family and friends--and saying, thank you for giving me my life back. Even many who failed drug treatment and have been sentenced by her, write from prison, not asking her to reduce their sentence but apologizing for failing in the treatment court. She always writes back, telling them there is no need to apologize and encouraging them to deal with their addiction.

Justice Ward noted how fortunate she feels to have a job that make difference in people’s lives, that we, as defense lawyers, also have a job that makes a difference in people’s lives, and that she was touched that NYCBA thought fit to honor her. [Click here for the full text of Justice Ward's comments.]

Upcoming Events:

UPCOMING CLE ETHICS PROGRAM IN JANUARY 2007

On January 8, 2007, NYCBA will present a 2-1/2 credit ethics program led by Hal Lieberman, former Chief Counsel for the First Department’s Departmental Disciplinary Committee, who was the principal speaker at our ethics program last May. NYCBA Board Member Fred Sosinsky will serve as the moderator for this program and will participate in the discussion regarding fees and retainer agreements. Maranda Fritz, who participated with Hal Lieberman in the May 2006 program and was the speaker at the follow-up ethics program in July, will also be speaker at the January 8, 2007 program, which will be held at 100 Centre St. in the 15th floor central jury room, starting at 5:30 p.m. The program is co-sponsored by the Legal Aid Society.

Among the subjects the speakers will address are the parameters of New York’s “anti-contact rule, in particular, a recent decision concerning whether a prosecutor may interview someone without contacting her lawyer, who represented her in the grand jury--where she testified with immunity–and who told the prosecutor that his client did not want to be interviewed. In a recent case handled by NYCBA members Roger Stavis and Stanley Lupkin, People v. Kabir, Ind. No. 90013/05 (NYS Sup. Ct., Bx. Co. Oct. 19, 2006), Justice Barbara Newman ruled that DR 7-104(a)(1) does not proscribe such an interview because the client was not a "party" to the criminal case.



DOJ Retreats (Slightly)From The "Thompson Memorandum"

On December 12, 2006, Deputy Attorney General Paul J. McNulty of the Department of Justice announced that, in response to uniform criticism from the defense bar, the DOJ had adopted certain revisions to the controversial "Thompson Memorandum," entitled "Principles of Federal Prosecution of Business Organizations," that was issued on Jan. 20, 2003. For more information on this topic, see the prepared remarks of Mr. McNulty at the Lawyers for Civil Justice Membership Conference regarding the DOJ's new Charging Guidelines in Corporate Fraud Prosecutions; and see the full text of the McNulty Memorandum.

New Supreme Court Ruling On Meaning Of "Aggravated Felonies"

On December 5, 2006, the Supreme Court held, in Lopez v. Gonzales, 549 U.S. ___ (2006 U.S. LEXIS 9442) that conduct made a felony under state law but a misdemeanor under the Controlled Substances Act is NOT a “felony punishable under the Controlled Substance Act.” 18 U.S.C. §924(c)(2). For a more detailed summary of this decision, see "Lopez: the Supreme Court reverses Ninth Circuit law on possession as an aggravated felony," by Steven Sady, the Deputy Federal Public Defender from Portland, OR, as posted on the Ninth Circuit Blog on December 5, 2006.

Second Circuit: New Rule Regarding Summary Orders

We remind our Members that, effective January 1, 2007, citation to Summary Orders will be permitted in the Second Circuit and will be governed by the Second Circuit's Local Rule 0.23. For more information about this rule change and the new procedures that will apply, see the attached "Notice of Rule Change," dated November 17, 2006.

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:

• In the October issue of our Newsletter, we noted that we had posted on the Federal Legal Research section of our Website, a copy of an article entitled "Representing a Client Charged With Violating Conditions of Supervised Release - Part I," by Douglas A. Morris, Assistant Federal Public Defender, Dallas, TX, as published in the Champion Magazine, November 2006. We are now pleased to note that we have posted "Representing a Client Charged With Violating Conditions of Supervised Release - Part II," by Mr. Morris, as published in the Champion Magazine, December 2006.
  
  
  
• We have posted on the Decisions section of our Website a copy of the ruling by Magistrate Judge Foschio of the W.D.N.Y., dated December 7, 2006 in the case entitled U.S. v. Crowell, No. 1:06-M-1195. In that ruling, Judge Foschio denied the government's motion to apply the mandatory conditions of release contained in the recent amendments to the Bail Reform Act contained in the Adam Walsh Child Protection and Safety Act of 2006 ("CPSA"), after concluding that those amendments violate the Excessive Bail Clause of the Eighth Amendment, procedural due process guaranteed by the Fifth Amendment, and the separation of powers doctrine. For the benefit of our members, we have also posted a copy of the defendant's Memorandum of Law challenging the constitutionality of the CPSA and the Government's Response to that challenge.
  
  
  
  

What's New On The Internet:

• A new Website of interest is Judicial Reports, which is maintained by the Institute for Judicial Studies, a self-described "non-partisan, non-ideological think tank" in New York City. The Website posts news and commentaries about judges and other aspects of the judiciary in New York. For example, it recently posted a lengthy comentary about Judge Richard Lee Price, who it called "New York City's most overturned criminal judge."
  
  
  The Website also provides access to Judicial Profiles, a subscription based service, that purports to offer "an unprecedented treasure trove of information on every state Supreme Court judge in New York City." As a sample of the information that is available from Judicial Profiles, we have attached various documents that were sent to us regarding Judge Judith J. Gische of the Supreme Court (Manhattan), Civil Term. Part 1 is a 16-page biography and profile; Part 2 is a 25 page listing of Judge Gische's campaign contributors; and Part 3 is a copy of Judge Gische's 2004 Financial Disclosure Form (16 pages).
  
  
  
  

Trials Wanted For Second-Seaters:

We continue to have a number of responses to prior newsletters and emails requesting about trials wanted for second-seaters; as you know, Andrea Hirsch is coordinating NYCBA efforts to match trial lawyers with second-seaters; if you have a firm trial date in a case which appears likely to go to trial, especially a short trial--federal or state--please contact her at aghirsch@rcn.com.

More On "Bronx DA" Book:

Our last newsletter requested comments on “Bronx D.A.: True Stories From the Sex Crimes and Domestic Violence Unit”, written by former Bronx ADA Sarena Strauss. In response, Daniel Hochheiser wrote, “I found it to be a worthwhile read about a young sex crimes prosecutor who permits you to share her journey through the job of an assistant in the Bronx. The book is interesting on a few levels, as you learn about the inner workings fo the Bronx DA’s office from the perspective of a prosecutor whose father was abused as a child and, in the end, finds the crime scenes in the South Bronx too much to bear. I give it 3 and 1/2 stars.” Any other comments?

News About NYCBA Members

Norman Reimer, immediate Past President of New York County Lawyers Association, has become the Executive Director of the National Association of Criminal Defense Lawyers , will be moving to Washington, D.C., and has resigned as a NYCBA Board member.

Charles Ross has opened his own firm called Charles A. Ross & Associates, LLC, located at 111 Broadway.

Michael Shapiro together with his partner, Alan Lewis, have joined Carter Ledyard & Milburn as partners, from Buchanan Ingersoll. Mike was a name partner at Slotnick, Shapiro & Crocker before his firm was acquired by Buchanan in 2005.

Comments and Newsletter Contributions Welcome:

Comments on the 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 let us know what you would like to see in the Newsletter and tell us about your own news, if you are changing firms or locations, looking for space or have space available. Please send your material to Scott Tulman, Chair of the Internet and Newsletter Committee at Tel.: (212) 867-3600 or email: stulman@tulmanlaw.com - or send your comments by email directly to our committee at: nycrimbar@nyc.rr.com.

Please Update Your Contact Information:

If you are changing your preferred email address or other contact information, please let us know so that you will continue to receive this Newsletter, NYCBA CLE notices and other information. Please send your new info to nycrimbar@nyc.rr.com

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