Tuesday, March 15, 2016

Gun Court - proposed voluntary discovery agreement

As correctly noted by my good pal Anonymous, I neglected to post the Gun Court voluntary discovery agreement - here it is: 

VOLUNTARY DISCLOSURE AGREEMENT 
CR # ________________ 

It is hereby agreed between the parties to the above-entitled action: 

1. For those criminal cases referred to the Monroe County Gun Crimes Part, the District Attorney of Monroe County will, as soon as practicable, provide pre-indictment discovery to the defendant’s attorney of record, for the purpose of facilitating potential plea discussions. Discoverable materials include those items set forth in CPL Section 240.20(1) and may include, where applicable, the defendant’s DCJS record, any relevant medical records which the District Attorney obtains, any warrants issued in connection with the case, any photographs shown to the witnesses in a procedure conducted to determine the identity of the perpetrator of the crimes charged and all police reports and memoranda relating to the criminal charges set forth under the above-referenced crime report number. The District Attorney of Monroe County, however, reserves the right to redact from the items listed above, any information which, she, in her complete discretion, deems confidential. 

2. The defendant will, as soon as practicable, disclose to the District Attorney all materials discoverable by a prosecutor pursuant to CPL Section 240.30(1) which may be material and relevant to the pre-indictment discussions. 

3. Each party may inspect, photograph, copy or test any item disclosed by the other party pursuant to paragraphs (1) and (2) above, upon an appointment made at least two (2) days in advance, provided that suitable arrangements are made to preserve the chain of custody and integrity of any items taken for testing. 

4. Both parties recognize that the duty of disclosure imposed by paragraphs (1) and (2) of this agreement is voluntary and is a continuing one. In the event that the above-referenced crime matter cannot be resolved by a Superior Court Information but rather, is presented to a Monroe County Grand Jury and an indictment or prosecutor’s information is returned, materials subject to disclosure as contemplated within this agreement, pursuant to CPL Section 240.20 (1), will be disclosed within thirty (30) days of arraignment. Moreover, the defendant shall, within thirty (30) days of arraignment, disclose to the District Attorney all materials discoverable by a prosecutor pursuant to CPL 240.30 (1). 

Materials subject to disclosure under this agreement which are obtained after the thirty (30) day periods specified herein, will be disclosed within fifteen (15) days after they are obtained, or prior to the commencement of trial, whichever occurs first. 

5. In the event that an indictment or prosecutor’s information is handed up by a grand jury and voluntary disclosure has been provided pursuant to paragraph (4) of this agreement, the defendant will not submit requests, demands or motions pursuant to CPL Sections 200.95; 240.20; or 240.40(1) seeking any particular discovery materials previously provided by the District Attorney and the District Attorney will not submit any demands or motions pursuant to CPL Sections 240.30 or 240.40(2)(a) seeking any particular discovery previously provided by the defendant; however either party may submit requests or demands for any materials subject to disclosure under CPL Article 240 which have not been previously provided under the agreement. Furthermore, either party may file a written motion within forty-five (45) days of defendant’s arraignment, except that such motion may, for good cause shown, be made at any time before commencement of trial. 

6. The District Attorney reserves the right to submit a written motion pursuant to CPL Section 240.40(2)(b) for the provision of non-testimonial evidence. 

7. The District Attorney consents to an enlargement of defendant’s time in which to serve a Notice of Alibi pursuant to CPL Section 250.20 until forty-five (45) days after defendant’s arraignment on the indictment or prosecutor’s information. 

8. The parties will exchange lists of the witnesses whom they expect to call in their direct cases at trial, immediately prior to the commencement of trial. 

Information on the new Monroe County Gun Court Part

The following description of the "Gun Crimes Part" was generated as a result of meetings with Supreme Court Justice Thomas Moran, District Attorney Sandra Doorley and Monroe County Public Defender Timothy Donaher, as well as several others.  We are sharing this with you so that you will become aware of the process.  This memo does not reflect any endorsement of the process by ETKS or its attorneys:

Gun Crimes Part

There is a new Supreme Court part designated to handle crimes involving guns.  The Court, named the “Gun Crimes Part”, began accepting cases during the last two months.  Defendants charged with Criminal Possession of a Weapon in the Second Degree or Criminal Possession of a Weapon in the Third Degree as top counts, or other felonies involving guns, will have their cases directed to this court, often referred to as “Gun Court.”  Supreme Court Justice Thomas E. Moran will preside over the court.

On Friday, December 4, 2015 Judge Moran, District Attorney Sandra Doorley and Dave Fluellen, a probation officer in charge of a component program  of the court (“Swift, Certain and Fair”) met with defense attorneys and some court personnel to discuss the program.  In subsequent meetings among the key players, issues relating to discovery and the contract have been addressed.  Although all details have not been finalized, in general, the following procedures will be used.  

Gun Crimes Part cases in general:

Defendants charged with CPW2, CPW3 or other felony charges involving guns occurring in the city of Rochester will be arraigned in Part 5.  The PH date will be set.  If during preliminary negotiations there is a possibility of a plea, attorneys can request an adjournment to “set” a PH as we often do now.  

Discovery was discussed preliminarily at the meeting, and in greater detail during later discussions between Sandra Doorley and Tim Donaher, the Monroe County Public Defender.  Ms. Doorley ultimately agreed that if the defense attorney signs a discovery agreement, discovery as set forth in the agreement will be provided.  (A copy of the discovery agreement is attached.  Note – defense counsel does waive the right to a Bill of Particulars, and certain other rights, so defense counsel should review the agreement before deciding whether to sign.)

Judge Moran will oversee all plea negotiations.  If there is an adjournment to set a preliminary hearing for the purpose of plea negotiations, the case will be forwarded to Judge Moran, who will handle the preliminary hearing if there is no plea agreement reached and the case has not been indicted.  Preliminary hearings will be at 9:00 a.m.

If the case is indicted on the CPW2 or CPW3 the case will be forwarded to Judge Moran.  At the indictment stage, cases will be tagged for Gun Crimes Part with a stamp on the indictment.

If you want to have a pre-plea investigation ordered during the course of negotiations prior to indictment, Judge Moran will be the judge to issue the order.

Sandra Doorley noted that prosecutors will have the discretion to offer reduced charges in appropriate cases, with supervisor approval.  

Judge Moran expressed a preference that cases in which there will be a reduction be pled before indictment, and that reductions after indictment would not be common.  He also indicated that one of the goals of the new court include quicker handling of cases.  So if you are trying to reach a resolution, since the case will be going to Judge Moran after indictment, you might want to try to resolve it before indictment with Judge Moran’s participation.

Indicted Cases:

Indicted cases will be stamped “Gun Crimes Part.”  They will be litigated before Judge Moran.  Nothing about this process limits the defense from engaging in any appropriate litigation on these cases.

Swift, Certain and Fair:

(Not kidding, this is really the name of the new initiative. Sounds like someone is trying to convince themselves). There is a new initiative involving interim probation supervision of certain defendants charged with CPW3, CPW2 and other violent felony cases called “Swift, Certain and Fair” which will be actively overseen by Judge Moran. This new program was the result of planning by the Monroe County District Attorney’s Office, Monroe County Probation, the Rochester Police Department, R.I.T., and DCJS.  As part of the DCJS GIVE initiative, the grant provides funding for one Probation Officer position and additional GPS monitoring capability.  

The program will accept up to sixteen cases of defendants who are between the ages of sixteen and twenty-four, not predicate felons and are considered to be at-risk, but potentially able to comply with program requirements. Participation in the program will be a disposition that defense counsel can request, and for which a client must be screened.  If a client is accepted to the program all parties will sign a contract, as they do in diversion courts. 

Defendants in this program will be placed on interim probation under the supervision of a unit headed by Dave Fluellen of the Probation Department.  They will have to plead to a felony at the outset and sign a contract that the defense attorney and prosecutor will negotiate.  Defendants in this program will have to wear ankle bracelets for the first six months of the interim probation.  They will be carefully monitored, provided case managers, and receive rewards for compliance and sanctions for noncompliance, based on a graduated scale of sanctions, as they progress through the program.  If a participant successfully completes the program within a year, s/he will be allowed to withdraw his/her initial plea and plead to a reduced charge with a probation sentence.  If the client violates a condition the “Swift, Certain and Fair” component kicks in – the client gets a notice, even if it is late at night, to appear before Judge Moran at 9:00 the next morning.  Attorneys will also be notified and expected to appear.
  
The existence of “Swift, Certain and Fair” will not preclude YO eligible defendants who are not considered as “at risk” or otherwise unable to obtain entry into “Swift, Certain and Fair”  from obtaining YO dispositions with probation as a sentence, or other defendants who may otherwise  be appropriate for a probation sentence from obtaining that disposition.

Miscellaneous:


All of the details have not yet been worked out, and there are still questions about aspects of the program, such as what will happen to a defendant who is on felony probation – where will the new VOP go?  Or what will happen if a person who has a felony charge pending picks up a new gun charge – will the older felony follow the defendant to gun court?  As more information is developed, it will be circulated.