Wednesday, March 30, 2011

New Blog Worth Reading: Hiscock Legal Aid Society Appeals Program Blog

A new useful addition to criminal law blogs in New York is the Hiscock Legal Aid Society Appeals Program Blog which provides both detailed statistics and case summaries for Appellate Division, Fourth Department decisions.

You Can't Go Your Own Way - The Deliberating Jury

The CPL requirement that a deliberating jury be "continuously kept together" (CPL 310.10[1]) has had its ups and downs over the last twenty years. People v Coons (75 NY2d 796 [1990]) determined that the failure of the trial court to keep a deliberating jury together was a mode of proceeding error, a category of error which cannot be waived and requires no objection to present an error of law to the Court of Appeals.

Then, in my case, People v Webb, the Court of Appeals said that Coons determined that jury sequestration did not require preservation, but that while it was a mode of proceedings error, this did not mean that it could not be affirmatively waived (78 NY2d 335 [1991]). The defendant in Webb had expressly agreed to sending the jury home. The fact that mode of proceedings errors had been unwaiveable since 1858's Cancemi v People (18 NY 128) did not affect the outcome.

Then came People v Agramonte (87 NY2d 765 [1996]), wherein the Court of Appeals said that Webb clarified Coons, and that preservation was required. Why? Because a mode of proceedings error cannot be waived! Ergo, this type of error must not be a mode of proceedings error, because Webb held that it could be waived. QED "Webb makes plain that the failure to sequester the deliberating jurors does not constitute a fundamental deviation from the proper mode of judicial proceedings." Ultimately, this was vitiated by Legislative changes allowing trial courts to send home deliberating jurors. But while the jury was actually deliberating, it has always been clear that they had to do so together.

Until now.

The Court of Appeals has just decided People v Robert Kelly (#58 decided 3/24/11). In Kelly, one juror had to be separated from the rest due to child care issues, and no instruction was given to the remaining jurors to cease deliberations. It is improper for the jury to deliberate if they are not all together. However, the court held "there was no mode of proceedings error dispensing with the preservation requirement because the brief, momentary separation of the juror from deliberations was not the type of violation contemplated by the 'continuously kept together' language of CPL 310.10". If CPL 310.10 was worded differently (perhaps "continuously kept together, and this means no brief momentary separations of jurors, dammit") then it would be a type of non-kept-togetherness contemplated under the statute.

Therefore, if one or more jurors are separated from the rest during deliberations, you need to object to preserve the error for appeal.

Sunday, March 27, 2011

What Should Asssigned Appellate Counsel Do When the Only Issues Risk Worse Outcomes for the Client?

Assigned appellate counsel, who upon a review of the record conclude that there are no non-frivolous issues, may move to be relieved of the assignment (People v Crawford, 71 AD2d 38). As I asked in a post in 2008, what do you do when the only non-frivolous issue is one that could hurt your client? For example, what if the sentence imposed was unlawfully short? Does an attorney have to file a brief challenging the sentence as unlawful? (See, People v Ammons (41 AD3d 1325)).

What if the client entered a plea to a lesser offense and already served the entire sentence and you see a possible issue regarding the plea? If you raise the issue regarding the plea and win your client faces the potential of a more serious conviction and more time. What if you are unable to get a response from your client as to what to do?

The Second Circuit provides one answer. In United States v. Ibrahim (62 F.3d 72 [2d Cir. 1995]) the Court held that where the defendant has not requested that appellate counsel challenge the validity of a plea and has not made such a challenge in a pro se brief, counsel can file an Anders brief which should either state that counsel believes that defendant would run unacceptable risk of adverse consequences in challenging the validity of the plea or discuss why there are no non-frivolous issues regarding the validity of the plea.

The Fourth Department has no clear holding guiding counsel. This situation presented itself in People v Phelps, 2011 NY Slip Op 02333 [4th Dept 3/25/11]. Ms. Phelps was convicted upon a guilty plea of attempted burglary in the second degree (Penal Law §§ 110.00, 140.25 [2]), and was sentenced to a determinate term of imprisonment of four years and five years postrelease supervision, to be served concurrently with a determinate sentence imposed on the same date for a separate felony conviction. However, because Ms. Phelps committed that offense while awaiting sentence on the prior offense, the concurrent sentences might have been illegally imposed (see Penal Law § 70.25 [2-b]).

Thus, counsel faced a dilemma. If the sentence was challenged as illegal, Ms. Phelps could face the imposition of a longer sentence. So counsel filed a Crawford motion rather than risking the client receiving more time.

Was that the right approach? The Appellate Division, Fourth Department, held that it was not. The Court wrote “that a nonfrivolous issue exists as to whether concurrent sentences were illegally imposed (see Penal Law § 70.25 [2-b]). Therefore, we relieve counsel of his assignment and assign new counsel to brief this issue, as well as any other issues that counsel's review of the record may disclose.” What should the nest assigned counsel do, other than rasie an issue which might result in the client receiving a longer sentence?

Three possibilities come to mind. First, the attorney might advise the client that the choices are to (1) raise the sentencing issue which might result in a longer sentence; (2) seek to have the plea vacated if it was co ndtioned on the illegal sentnece (which might result in a conviction to the same [or, if it was plea to a reduced charge, higher offense] and a longer sentence; or if those alternatives are undesirable, (3) stipulate to discontinue the appeal.

Then counsel can follow the client’s preference. If the client fails to respond, after repeated communications, counsel can file a motion to dismiss the appeal for abandonment, rather than an Anders-Crawford motion.

Saturday, March 26, 2011

Brady v Maryland - Outline of leading cases applying Brady rule

BRADY OUTLINE (March 23, 2011)

by Jill Paperno, Special Assistant Monroe County Public Defender

BRADY V. MARYLAND, 373 U.S.83 – Turnover of information is a requirement of 14th Amendment due process “We now hold that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” nb – Court did not say it had to be exculpatory, though DA’s will make the claim it does.

KYLES V. WHITLEY, 514 U.S. 419 – From the case syllabus: “…(F)avorable evidence is material, and constitutional error results from its suppression by the government, if there is a “reasonable probability” that, had the evidence been disclosed to the defense, the result of the proceeding would have been different…One does not show a Brady violation by demonstrating that some of the inculpatory evidence should have been excluded, but by showing that the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict…(T)he state's disclosure obligation turns on the cumulative effect of all suppressed evidence favorable to the defense, not on the evidence considered item by item. (cites omitted). Thus, the prosecutor, who alone can know what is undisclosed, must be assigned the responsibility to gauge the likely net effect of all such evidence and make disclosure when the point of “reasonable probability” is reached. Moreover, that responsibility remains regardless of any failure by the police to bring favorable evidence to the prosecutor's attention. To hold otherwise would amount to a serious change of course from the Brady line of cases.”

PEOPLE V. BRYCE 88 NY2d 124 – (Failure to preserve and turn over significant exculpatory forensic evidence) “Under the New York rule, if a general demand has been made, evidence will be deemed material if there is a reasonable probability that had it been disclosed to the defense, the result would have been different-i.e., a probability sufficient to undermine the court's confidence in the outcome of the trial (cites omitted). The rule applies regardless of the good or bad faith of the prosecutor, for its purpose is not to punish misconduct but to insure that the accused receives a fair trial (cites omitted).” “Notably, in rejecting defendant's claim of prejudice at that time, the Appellate Division stated that defendant had made no claim the evidence was exculpatory (174 A.D.2d at 947, 571 N.Y.S.2d 638, supra ). Indeed, defendant could not have made such a claim before seeing the skull.”

PEOPLE V. BAXLEY 84 NY2d 208 – (Failure of prosecutor to turn over prior statement of informant stating other informant witness was induced to falsely testify by promise of leniency) “A prosecutor's duty of disclosing exculpatory material extends to disclosure of evidence impeaching the credibility of a prosecution witness whose testimony may be determinative of guilt or innocence (cites omitted). Clearly, Washington (a witness who was described by witness Youman as having given a false statement) was such a witness at defendant's trial, and nondisclosure cannot be excused merely because the trial prosecutor genuinely disbelieved Youmans' recantation. The “good faith” of a prosecutor is not a valid excuse for nondisclosure ( Giglio v. United States, supra ).”

PEOPLE V. CWIKLA 46 NY2d 434 – (Prosecutor’s failure confirm correspondence in support of informant’s application for parole) “A prosecutor is under a duty to disclose to defense counsel correspondence between the office of the District Attorney and the Parole Board advising of the co-operation of a principal prosecution witness in the trial of the witness' accomplices and expressing the hope that such co-operation will be taken into account when the witness is considered for parole.”
“It is fundamental that material evidence which is in the possession of the prosecution and which is exculpatory in nature must be turned over to the defendant in order to give meaning to the constitutional right to a fair trial (citing Brady) It is equally true that “(w)hen the ‘reliability of a given witness may well be determinative of guilt or innocence’, nondisclosure of evidence affecting credibility falls within this general rule.” (cites omitted) The existence of an agreement between the prosecution and a witness, made to induce the testimony of the witness, is evidence which must be disclosed under Brady principles (cites omitted).”

PEOPLE V. DOSHI 93 NY2d 499 - (Not Brady violation when prosecution did not turn over billing records defendant generated) “The Brady doctrine requires prosecutors to turn over material exculpatory to defendants (cite omitted). Brady does not, however, require prosecutors to supply a defendant with evidence when the defendant knew of, or should reasonably have known of, the evidence and its exculpatory nature (cite omitted).”

PEOPLE V. HUNTER 11 NY3d 1 - (Prosecution failed to disclose complainant had accused another man of date rape before defendant’s trial in which he was accused of date rape) “If the information known to the People when this case was tried was ‘favorable to [the] accused’ and ‘material’ within the meaning of Brady, defendant had a due process right to obtain it, and that right could not be nullified by post-trial events.” nb – court considers possibility that this evidence would have been admissible in discretion of trial court.

PEOPLE V. SANTORELLI, 95 N.Y.2d 412 – (Good language, bad decision – failure to turn over federal records not in possession of prosecutor not Brady violation.) “A prosecutor must ‘learn of any favorable evidence known to the others acting on the government's behalf in the case’ and promptly disclose any such material evidence to the defendant (cites omitted)….Thus, this Court has charged the People with knowledge of exculpatory information in the possession of the local police, notwithstanding the trial prosecutor's own lack of knowledge ( see, People v. Wright, 86 N.Y.2d 591, 598, 635 N.Y.S.2d 136, 658 N.E.2d 1009; see also, People v. Novoa, 70 N.Y.2d 490, 498, 522 N.Y.S.2d 504, 517 N.E.2d 219 [prosecutor was delinquent in failing to ‘discover and disclose’ terms of cooperation agreement entered into between a trial witness and Special Prosecutor] ). The duty to disclose information in these circumstances, of course, cannot be greater than the power to acquire it.”

PEOPLE V. STEADMAN 82 NY2d 1 – (DA fails to disclose deal made by other prosecutor in the office for leniency to cooperating informant.) “The prosecutor's duty is not lessened because Brady material may affect only the credibility of a government witness. Indeed, we have held explicitly that the duty includes promises of leniency given to the witness in exchange for favorable testimony against an accused (cites omitted). Moreover, the prosecutor's duty extends to correcting mistakes or falsehoods by a witness whose testimony on the subject is inaccurate (cite omitted)… In the final analysis, however, it does not matter whether the trial assistants were genuinely unaware of the arrangement or not. A prosecutor's obligations to correct false testimony given by prosecution witnesses and to disclose Brady material are duties exercised by individual prosecutors and shared by the prosecutor's office as a whole. Promises made to a defendant by one prosecutor are generally binding on others in the criminal law enforcement system and certainly promises made by a superior are binding on subordinates in the same office.”

PEOPLE V. VALENTIN 1 AD 3d 982, Fourth Dept. 2003 – “The criminal record of a prosecution witness constitutes exculpatory material within the meaning of Brady (cites omitted). That rule accords with the principle that the People's disclosure obligations under Brady extend beyond matters that tend to establish defendant's innocence and include material evidence that impeaches ‘the credibility of a prosecution witness whose testimony may be determinative of guilt or innocence’ (cites omitted)…It is not determinative that the prosecutor denied any contemporaneous actual knowledge of the eyewitness's criminal convictions as a consequence of his self-professed standard practice of not checking into such matters. ‘The requirement that the Brady material be in the People's possession or control * * * has not been interpreted narrowly’ (cites omitted) “A prosecutor must ‘learn of any favorable evidence known to the others acting on the government's behalf in the case’ and promptly disclose any such material evidence to the defendant” (cites omitted). Here, the criminal record of the eyewitness was readily available to the prosecutor and certainly known to other individuals in his office who recently had prosecuted the eyewitness (cite omitted). We nonetheless conclude under the circumstances of this case, in which there was no specific request for the exculpatory material in question, that there is no “reasonable probability” that the verdict would have been different had the material been disclosed to the defense and presented to the trier of fact (cites omitted). (But note – a federal habe was granted in this case. See Valentin v. Mazzuca, 2011 WL 65759, in which U.S. Magistrate Judge Bianchini says the DAs cannot be ostriches and other wonderful things.

PEOPLE V. VILARDI, 76 NY 2D 67 – (Failure of prosecutor to turn over exculpatory report of arson investigator) Court reviews history of Brady and its progeny at Federal level, and finds New York grants greater protection to defendants if there is a specific request for Brady material. “We agree with the Appellate Division that a showing of a ‘reasonable possibility’ that the failure to disclose the exculpatory report contributed to the verdict remains the appropriate standard to measure materiality, where the prosecutor was made aware by a specific discovery request that defendant considered the material important to the defense.”

PEOPLE V. WRIGHT 86 NY2d 592 – (Failure to inform defense that complainant was a police informant in assault case in which officers’ testimony differed pre-trial and at trial was violation.)“This case presents the question whether the People's failure to inform the defendant that the complainant had previously operated as an informant for the local police department violated defendant's right to due process. We conclude that the People were required to disclose this information pursuant to Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 and therefore reverse defendant's conviction.” “Had defendant been armed with the knowledge that Washington was an informant for the same police department that employed Keane and Walczak, she could have presented the jury with a motive for them to favor Washington. Like evidence tending to affect credibility, evidence establishing such a motive for prosecution witnesses to corroborate the complainant falls within the ambit of the Brady rule ( see, Giglio v. United States, 405 U.S. 150, 154, 92 S.Ct. 763, 766, 31 L.Ed.2d 104, supra; People v. Novoa, 70 N.Y.2d 490, 496, 522 N.Y.S.2d 504, 517 “

***Use the above cases to support your argument that Brady applies for trial and sentencing, that the DA cannot avoid the information or choose not to turn it over because they don’t believe it, it includes evidence going to the reliability and credibility of witnesses as well as other conduct (See Hunter) such as priors and cooperation agreements (and even agreements to put in a good word – See Cwikla- but if you knew or should have known about it it may not be a violation. A specific request is also better than a general request. Requests must be made on the record for an appellate court to be aware of them.

Important Decision on 30.30 Motions and Preservation of Claim

by
Drew R. DuBrin, Special Assistant Monroe County Public Defender

The Court of Appeals has just decided an important decision on what a defendant must do to preserve his claim that a period of unreadiness is not excludable from the 30.30 calculation.

As you know, in moving to dismiss on CPL 30.30 grounds, the defendant bears the burden of alleging in her motion papers a period of excessive pre-readiness and/or post-readiness delay . If the defendant meets that motion practice burden, the burden then shifts to the People to allege periods of delay that are excludable from the 30.30 calculation. Delay that can be excluded is set forth under 30.30's subdivision 4.

In People v Beasley(__ NY3d _ , [3/24/11) , the Court of Appeals held that where the defendant has alleged in his motion papers a specified period of delay (in this case, it was delay caused by the People’s failure to provide the court with grand jury minutes, an impediment tot he People’s readiness for trial), the People respond to the defendant’s motion allegations by contending that the entire period of alleged delay is excludable from the calculation (in this case, pursuant to 30.30 [4] [a], the period of delay during which the defendant’s motion to dismiss on the grand jury minutes was pending), and the defendant does not reply to the People’s answering affirmation by arguing in the alternative that a particular portion of that entire period of delay is not excludable, the defendant will have failed to preserve for appellate review the alternative argument that the particular portion of the alleged delay is not excludable. The Court explained, “it was defendant’s duty, either in its initial submission or in a reply, to draw the court’s attention to the discrete periods that he now claims should have been chargeable to the people pursuant t CPL 30.30 and to explain why.”

Practice Commentary: The first lesson to be learned from this decision is that your 30.30 job may not done when you make your 30.30 motion to dismiss by simply alleging an excessive period of delay, without alleging in your papers why specific periods are not excludable. If the People in turn respond by alleging that certain periods are excludable, those periods will be deemed excludable unless you follow-up by submitting additional papers disputing that the period alleged to be excludable is not excludable and explaining why. Second, the appellate court will only consider not excluding the periods you specifically allege to be not excludable. If you argue that from January to July is not excludable because the People’s delay in responding to your omnibus motion was “unreasonable,” the appellate court will consider only whether that entire period was not excludable. It will not consider, for example, the alternative argument that the shorter period from May to July was not excludable as being unreasonable delay.

Tuesday, March 22, 2011

Certiorari Petition Filed in People v Battles

In December 2010 I wrote about the en banc decision of the Second Department in Portalatin v. Graham (624 F3d 69 [2d Cir 10/18/10])and the companion cases holding that the New York's decision upholding the New York PFO sentencing statutes "the state courts did not engage in an unreasonable application of clearly established Supreme Court precedent in affirming the convictions." (here)

In that post, I also reviewed the decision of the New York Court of Appeals in People v Battles (16 NY3d 54 [12/14/10]), in which that Court once again rejected a challenge to the constitutionality of New York's persistent Felony Offender sentencing laws, I suggested that Battles provided a glimmer of hope becauseChief Judge Lippman wrote a strong dissent in which he first pointed out that the Court in Portalatin did not "decide not whether the state court correctly interpreted the doctrine of federal law on which the claim is predicated, but rather whether the state court's interpretation was unreasonable in light of the holdings of the United States Supreme Court at the time." Then, Chief Judge Lippman wrote that there is no material difference between the California statute struck down by the United States Supreme Court in Cunningham v California (549 US 270 [2007]) "and our persistent felony offender sentencing statutes." I wrotw that Chief Judge Lippman's dissent suggests that there is a chance that the Supreme Court would grant a petition for certiorari and then strike down New York's PFO sentencing statutes.

I'm writing now to report that on March 21, 2011 the United States Supreme Court denied petitions for certiorari in Portalatin v. Graham and the companion cases, challenging the constitutionality of New York's Persistent Felony Offender sentencing law in the context of habeas corpus proceedings. However, review of the constitutionality of New York's Persistent Felony Offender sentencing law is still being sought in the certiorari petition filed on March 10, 2011 in the direct appeal in People v Battles

Tuesday, March 8, 2011

CONVICTION OF USER OR ADDICT IN POSSESSION OF A FIREARM DOES NOT REQUIRE ONE TO BE DETAINED AFTER PLEA OR VERDICT OF GUILTY

by
Mark D. Hosken, Supervisory - Assistant Federal Public Defender, WDNY

A defendant enters a guilty plea or is found guilty after trial of being a user or addict in possession of a firearm in violation of 18 U.S.C. §922(g)(3). The prosecutor moves the Court to remand the individual into custody pending sentencing. The government contends 18 U.S.C. § 3143(2) requires such detention as such possession is a crime of violence under 18 U.S.C. § 3142(f)(1)(A). You recall something about felon in possession [18 U.S.C. § 922(g)(1)] being a crime of violence, but you can’t remember anything about an addict in possession meeting that definition. You are correct. It hasn’t been found to be a crime of violence in the Circuit. Thus, the mandatory remand provision is inapplicable to one convicted of 18 U.S.C. § 922(g)(3).

The Bail Reform Act in 18 U.S.C. § 3143(a)(2) normally requires the defendant’s remand into custody at the time of plea. That necessitates a finding that one was convicted of an offense described in § 3142(f)(1)(A), (B), or (C). Subsection (A) is the one that is most applicable. That includes those offenses designated as a “crime of violence.” “Crime of violence” is defined in 18 U.S.C. § 3156(a)(4). Again, the most applicable sections would be subsections (A) & (B) to § 3156(a)(4).

In United States v. Dillard, 214 F.3d 88 (2d Cir. 2000), a panel of the Second Circuit held that felon in possession of a firearm [18 U.S.C. § 922(g)(1)] is a crime of violence for purposes of the Bail Reform Act. Such conclusion would normally require the Court to remand the defendant into custody at the time of his plea of guilty to felon in possession of a firearm. However, the Second Circuit has not decided whether the separate offense of user or addict in possession of firearm is a crime of violence pursuant to § 3156(a)(4). The only decided case I could locate which held that user in possession of a firearm is a crime of violence is unpublished. It is United States v. Ditrapano, 2006 WL 1805848 (S.D.W.Va, 2006). Though Ditrapano held user or addict in possession to be a crime of violence, there was no analysis of the statute supporting the conclusion that user in possession of a firearm is a “crime of violence.” The district court simply relied on the Second Circuit’s rationale in the Dillard case. Such analysis does not logically apply to user in possession prosecutions. Most of the Dillard opinion was devoted to the ills of society (i.e., danger) by convicted felons having firearms. That is not usually present in the addict in possession case.

Congress amended the detention statute in 2006 as part of the Adam Walsh Act. A new subsection (E) was added to 18 U.S.C. § 3142(f)(1). It permits the government to move for detention in a case that involves “any felony that is not otherwise a crime of violence that involves a minor victim or that involves a possession or use of a firearm . . . .” This section was added to address the circuit split over whether a felon in possession charge was a crime of violence for purposes of the Bail Reform Act. The amended section includes the charge of user in possession of a firearm regardless if it is determined to be a crime of violence or not. Simply put, the government has a separate basis to seek detention for anyone charged with a felony firearm offense: § 3142(f)(1)(E).

18 U.S.C. § 3143(a)(2) requires the defendant’s remand into custody when convicted of certain offenses. That mandatory remand section only applies to those found guilty of offenses under § 3142(A), (B), or (C). Unless one is convicted of a crime of violence or another statutory crime under those subsections, he is not required to be detained upon plea or verdict. Here, it must be assumed that Congress meant what it said when it created § 3142(f)(1)(E). There is no reason that individuals convicted of those offenses in subsection (E) be mandatorily remanded. Those offenses identified in § 3142(f)(1)(E) are specifically excluded from those cited in the mandatory remand section [§ 3143(a)(2)].

An addict in possession of a firearm is not convicted of a crime of violence as defined under the Bail Reform Act. Thus, such conviction does not qualify as an offense requiring mandatory remand under 18 U.S.C. § 3143(a)(2). Assuming your client is not likely to flee or pose a danger to the safety of any other person or the community and the Court makes such finding, he should be continued on the previous conditions of release.

Wednesday, March 2, 2011

Can the Judge judge your case?

by Jill Paperno,
Special Assistant Monroe County Public Defender

As many of you know, the judge you start with in a case is not always the judge you end with. There are rules governing which judges may handle which cases, and the circumstances in which cases may be transferred. You may wish to object to assignment of a judge on your case on one of several grounds - either the judge is not authorized by law to sit on the case based on the court in which the judge is actually elected to serve, or the case was transferred without the proper order, or the transfer is for reasons not authorized by law.

1. Can the judge take the type of case?

The Judiciary Law permits the Chief Administrative Judge to temporarily assign judges to courts. That authority is limited by the New York State Constitution, Article 6, Section 26. That section includes limitations on which judges may handle which cases. The full section is below. Notably, as set forth in subsection (j)(2) a City Court judge can sit as a County Court judge, but not as a Supreme Court Judge. So if a City Court judge is authorized to sit as County Court, they may not be authorized to pick up a Supreme Court case. You can object based on the State Constitution provisions.

2. Can the judge take the case if it is transferred between courts?

In order for a case to be transferred from one court to another, there has to be an order in place. We don't usually see these orders, but perhaps we ought to start asking for them. The one I got yesterday doesn't seem to reflect that the case was transferred from Supreme to County, so maybe there's an issue here. According to the Fourth Department in People v. Adams, 74 AD 3d 1897, "defendant (was) correct that, in order to remove a criminal action from County Court to Supreme Court, the Uniform Rules for the New York State Trial Courts require that such removal be authorized by the Chief Administrator and that it occur prior to the entry of a plea or commencement of trial (see 22 NYCRR 200.14). Neither condition was met here, and thus ASCJ Griffith had no authority to preside over sentencing, rendering the sentence illegal."

Although a judge may have lots of experience, that doesn't address the issue raised by Adams. Here's the language of the order in a recent case, and the language I believe all these orders probably use: Pursuant to the authority vested in me, I hereby order that the Hon. Jane Doe, City Court Judge, City of Rochester be (sic) and hereby is assigned temporarily to County Court, County of Monroe to hear and determine the following matter: (name of case and docket number which is really the indictment number); this assignment is in addition to his other duties and assignments. The Hon. Jane Doe shall preside over this matter until it is concluded."

This language doesn't seem to transfer the case from Supreme to County. Additionally, this case won't be staying with Judge Doe, so I'm assuming there won't be a transfer order back. Interestingly, Adams notes that this issue doesn't have to be preserved for appeal.

3. Can the judge take the case - 22 NYCRR 200.14?

This section of NYCRR sets forth the rules for assignment of cases to judges. It states, "Except as provided in subdivision (b) of this section, upon commencement of a criminal action in the superior court, the action shall be assigned to a judge by the clerk of the court in which it is pending pursuant to a method of random selection authorized by the Chief Administrator. The judge thereby assigned shall be known as the 'assigned judge' with respect to such action and, except as otherwise provided in subdivision (d) of this section, shall conduct all further proceedings therein.

Subdivision (d) lists four exceptions Here they are:

(1) Where the requirements of matters already assigned to a judge are such as to limit the ability of that judge to handle additional cases, the Chief Administrator may authorize that new assignments to that judge be suspended until the judge is able to handle additional cases.

(2) The Chief Administrator may authorize the assignment of one or more special reserve trial judges. Such judges may be assigned matters for trial in exceptional circumstances where the needs of the courts require such assignment.

(3) Matters requiring immediate disposition may be assigned to a judge designated to hear such matters when the assigned judge is not available.

(4) The Chief Administrator may authorize the transfer of any action and any matter relating to an action from one judge to another in accordance with the needs of the court.

I don't know if the orders that are being used address which exception led to the transfer, and if the order doesn't specify, perhaps the orders are inadequate and the transfers are improper.

The temporary assignment of judges provision of the Constitution mentioned above:

a. A justice of the supreme court may perform the duties of office or hold court in any county and may be temporarily assigned to the supreme court in any judicial district or to the court of claims. A justice of the supreme court in the city of New York may be temporarily assigned to the family court in the city of New York or to the surrogate's court in any county within the city of New York when required to dispose of the business of such court.

b. A judge of the court of claims may perform the duties of office or hold court in any county and may be temporarily assigned to the supreme court in any judicial district.

c. A judge of the county court may perform the duties of office or hold court in any county and may be temporarily assigned to the supreme court in the judicial department of his or her residence or to the county court or the family court in any county or to the surrogate's court in any county outside the city of New York or to a court for the city of New York established pursuant to section fifteen of this article.

d. A judge of the surrogate's court in any county within the city of New York may perform the duties of office or hold court in any county and may be temporarily assigned to the supreme court in the judicial department of his or her residence.

e. A judge of the surrogate's court in any county outside the city of New York may perform the duties of office or hold court in any county and may be temporarily assigned to the supreme court in the judicial department of his or her residence or to the county court or the family court in any county or to a court for the city of New York established pursuant to section fifteen of this article.

f. A judge of the family court may perform the duties of office or hold court in any county and may be temporarily assigned to the supreme court in the judicial department of his or her residence or to the county court or the family court in any county or to the surrogate's court in any county outside of the city of New York or to a court for the city of New York established pursuant to section fifteen of this article.

g. A judge of a court for the city of New York established pursuant to section fifteen of this article may perform the duties of office or hold court in any county and may be temporarily assigned to the supreme court in the judicial department of his or her residence or to the county court or the family court in any county or to the other court for the city of New York established pursuant to section fifteen of this article.

h. A judge of the district court in any county may perform the duties of office or hold court in any county and may be temporarily assigned to the county court in the judicial department of his or her residence or to a court for the city of New York established pursuant to section fifteen of this article or to the district court in any county.

i. Temporary assignments of all the foregoing judges or justices listed in this section, and of judges of the city courts pursuant to paragraph two of subdivision j of this section, shall be made by the chief administrator of the courts in accordance with standards and administrative policies established pursuant to section twenty-eight of this article.

j. (1) The legislature may provide for temporary assignments within the county of residence or any adjoining county, of judges of town, village or city courts outside the city of New York.

(2) In addition to any temporary assignments to which a judge of a city court may be subject pursuant to paragraph one of this subdivision, such judge also may be temporarily assigned by the chief administrator of the courts to the county court, the family court or the district court within his or her county of residence or any adjoining county provided he or she is not permitted to practice law.

k. While temporarily assigned pursuant to the provisions of this section, any judge or justice shall have the powers, duties and jurisdiction of a judge or justice of the court to which assigned. After the expiration of any temporary assignment, as provided in this section, the judge or justice assigned shall have all the powers, duties and jurisdiction of a judge or justice of the court to which he or she was assigned with respect to matters pending before him or her during the term of such temporary assignment.

These are some of the provisions to keep in mind whenever there is a change of judge.