Joint amicus curiae brief (submitted with motion for leave to file on Feb. 2, 2009) of the National Association of Criminal Defense Lawyers, the New York State Association of Criminal Defense Lawyers, the New York State Defenders Association, the Electronic Frontier Foundation, the American-Arab Anti-Discrimination Committee, the Sikh American Legal Defense and Education Fund, the Council on American-Islamic Relations, and the Union for Reform Judaism.

Argument: The decision of the Appellate Division, Third Department should be reversed. To secure both First and Fourth Amendment rights, as well as liberty and privacy rights under New York State Constitution, law enforcement should be required to secure a warrant based on probable cause prior to secretly installing GPS transmitter on a person’s vehicle and undertaking such surveillance.

Brief Amici Curiae for the National Association of Criminal Defense Lawyers and the New York State Association of Criminal Defense Lawyers.

Argument: The New York Constitution and Criminal Procedure Law § 400.10 support recognizing actual innocence as a basis for collateral relief.

Joint amicus curiae brief of the National Association of Criminal Defense Lawyers and the New York State Association of Criminal Defense Lawyers.

Argument: The decision of the Appellate Division, First Department should be reversed. Due process requires prosecutors to disclose favorable information – not just evidence – in time for defense counsel to investigate and use it at trial. These opportunities are precluded when the prosecutor withholds the information. Requiring defendant to establish the information’s admissibility for the first time years after conviction is an often impossible task. When information emerges long after trial, courts should assume accuracy and that timely disclosure would have led to admissible or otherwise helpful evidence, and then apply the Vilardi materiality test.

Brief dated February 2, 2010. Joint amicus curiae brief of the National Association of Criminal Defense Lawyers, the New York State Bar Association, the New York State Association of Criminal Defense Lawyers, the New York County Lawyers’ Association, Louis Stein Center for Law and Ethics at Fordham University School of Law,

Argument: Jacob Burns Center for Ethics in the Practice of Law at Benjamin N. Cardozo School of Law, Criminal Justice Center at Pace University School of Law, Center on Latino and Latina Rights and Equality at CUNY School of Law, and 40 New York law professors from all 15 law schools in New York State.

The decision of the Appellate Division, Third Department should be reversed. The right to effective assistance of counsel under the Sixth Amendment, and the New York State constitutional analogue (Art. I, Sec. 6) is broader than the right to assistance at trial and requires more than the mere appointment of counsel. The Strickland post-conviction remedial standard is the wrong standard in a class action seeking prospective relief to halt and prevent system-wide deficiencies in how New York meets its constitutional obligation to provide indigent defendants effective assistance of counsel. The right to effective assistance of counsel is cognizable prospectively.

Amicus curiae brief of The Sentencing Project, NAACP Legal Defense & Education Fund, Inc., National Association of Criminal Defense Lawyers, New York State Association of Criminal Defense Lawyers, The Women's Prison Association, Legal Action Center, The Fortune Society, Bronx Defenders, Center for Community Alternatives, Citizens United for Rehabilitation of Errants, Justice Policy Institute, Souther Tier Advocacy & Mitigation Project, Inc., Parolee Human Rights Project of the New York City AIDS Housing Network, Advocare, Inc., ...

Argument: ... The Equal Justice Initiative of Alabama, Voice of the Ex-Offender, The Community HIV/AIDS Mobilization Project, and The Real Cost of Prisons Project, in support of plaintiff appellants. "Brandeis brief" deploring exorbitant costs of collect calls from New York state prisons as bad public policy. New York State makes over $20 million a year profit from inmate-placed collect calls to family and counsel, in effect levying an "inmate telephone tax" on poor families, public defenders and criminal defense lawyers.

Brief of Amici Curiae the National Association of Criminal Defense Lawyers and the New York State Association of Criminal Defense Lawyers in Support of Defendant-Appellant.

Argument: The order of the Appellate Division, First Department should be reversed, Mr. Johnson’s motion to suppress should be granted, and the conviction should be reversed. There was no probable cause to arrest Todd Johnson. Mr. Johnson’s alleged gang membership is entitled to no weight when assessing probable cause. Prior gang problems at the location did not establish probable cause to arrest Mr. Johnson. Partial obstruction of a doorway cannot provide a basis for probable cause without evidence of public harm. Were the Court to uphold probable cause on these facts, the New York disorderly conduct statute would be unconstitutional.

Brief for Amici Curiae the New York State Defenders Association, Inc., New York State Association of Criminal Defense Lawyers, National Association of Criminal Defense Lawyers et al., including Immigrant Defense Project (complete list of amici is available in appendix to brief linked above).

Argument: The advice regarding deportation is critical to an immigrant defendant. The professional standards supporting this duty in New York pre-date the 1996 immigration laws. The rule articulated in Padilla v. Kentucky applies under New York law to remedy Padilla violations pertaining to uninformed pleas entered in New York at least from the passage of AEDPA and IIRIRA in 1996 onward. Fundamental fairness demands that the courthouse doors remain open, at least, to Padilla claims arising from pleas entered after AEDPA and IIRIRA, not merely for those cases that were pending when Padilla was decided or came after Padilla.

Brief for Amici Curiae National Association of Criminal Defense Lawyers and New York State Association of Criminal Defense Lawyers.

Argument: Conviction under § 353 requires proof beyond a reasonable doubt that the defendant acted with a culpable state of mind. Section 353 must be construed to require mental culpability. There is no indication of clear legislative intent to make § 353 a strict liability offense. Current legislative initiatives reflect a consensus that § 353 has a mens rea requirement. The appellate term’s reliance on A.M.L. § 43 is misplaced because § 353 is not a public welfare and regulatory law. The trial court’s failure to provide a proper jury instruction was not harmless error and warrants reversal of Mr. Basile’s conviction.

Brief for Amici Curiae [National Association of Criminal Defense Lawyers, Innocence Project, American Civil Liberties Union, New York Civil Liberties Union, New York State Association of Criminal Defense Lawyers, Legal Aid Society, Bronx Defenders, Center for Appellate Litigation, Office of the Appellate Defender, and Chief Defenders Association of New York] in Support of Respondent

Argument: A prosecutor may not withhold knowledge from the defense of circumstantial evidence from which a jury might reasonably infer that a prosecution witness has a motive to lie simply because the prosecutor believes such a determination would be ‘false,’ nor may it excuse its error years later by citing evidence that also was never presented or vetted at the trial. Evidence of motive must be disclosed so that defense counsel can investigate and present that evidence and the jury—as opposed to the prosecutor—may determine its significance. The people should not be permitted to rely upon information they never used at trial to defeat the materiality of defense-favorable evidence they suppressed.

Brief of Amici Curiae National Association of Criminal Defense Lawyers and New York State Association of Criminal Defense Lawyers.

Argument: FOIL is an indispensable tool for criminal defendants who have been denied access to exculpatory evidence. Criminal defendants in New York are routinely denied exculpatory information. FOIL has proven crucial in ensuring criminal defendants obtain exculpatory information to which they are entitled. The Second Department's decision is inconsistent with the law and policy of this state. The Second Department's decision is contrary to the legislature's intent. The Second Department's decision is contrary to legislative proposal to reform criminal discovery.

Brief of Amici Curiae National Association of Criminal Defense Lawyers and New York State Association of Criminal Defense Lawyers in Support of Defendant-Appellants.

Argument: Under Penal Law § 70.10 and CPL § 400.20, a court may sentence a convicted felon with prior felony convictions as a “Persistent Felony Offender” only upon findings made by a judge under a preponderance of the evidence standard. New York’s sentencing scheme under the statute and the CPL is functionally the same as the statutory scheme found unconstitutional by the United States Supreme Court in Hurst v. Florida.

Brief of Brooklyn Defender Services, The Legal Aid Society, The Bronx Defenders, Neighborhood Defender Service of Harlem, the National Association of Criminal Defense Lawyers, New York State Association of Criminal Defense Lawyers, and the Chief Defenders Association of New York as Amici Curiae in Support of Appellant.

Argument: There is substantial scholarly authority establishing that cross-racial identifications are less reliable and more prone to inaccuracy than other identifications. Failure to instruct the jury on the issue of cross-racial identification risks erroneous convictions due to Jurors' lack of awareness of the issue and potentially deprives defendants of their right to a fair trial. A defendant's right to call an expert on the issue of a cross-racial identification does not cure the prejudice resulting from the absence of a jury instruction. Cross-examination is an ineffective way to introduce pertinent information on own-race identification bias, and a rule requiring it to receive an instruction would almost certainly alienate jurors in the process. New York should implement a mandatory cross-racial jury instruction that reflects widely-accepted science.

Brief for Amici Curiae National Association of Criminal Defense Lawyers, the New York State Association of Criminal Defense Lawyers, and the Chief Defenders Association of New York in Support of Defendant-Appellant.

Argument: This Court should hold that counsel who, like Mr. Arjune’s counsel, abandon their clients rather than perfecting their appeals or apprising them of their right to substitute counsel are ineffective. The U.S. Supreme Court has held that criminal defendants have a constitutional right to effective assistance of counsel during appeals as of right, and this Court has held that such defendants are entitled to “meaningful representation” during such appeals. Counsel was ineffective by abandoning Mr. Arjune after noticing his appeal without ensuring that new counsel was substituted and without even apprising his client of his right to counsel on appeals. Requiring an attorney who notices an appeal to assist his or her client in obtaining substitute counsel for the appeal both ensures that the guarantee of effective assistance is fulfilled and is administratively workable.

Brief for Amicus Curiae National Association of Criminal Defense Lawyers in Support of Plaintiffs-Appellants.

Argument: The lower courts erred by considering only the dictionary definition of the word ‘suicide’ and ignoring other important rules of statutory construction. The Appellate Division failed to consider whether its interpretation of the statute was consistent with legislative intent. The appellate division failed to construe the statute in accordance with the rule of lenity. In the alternative, the Appellate Division’s interpretation should be rejected because the assisted suicide statute, as applied to physician appellants, would be unconstitutionally vague.