NYCLU Says NY State has Failed the Citizens

"The NYCLU contends the state has "abdicated" its right to provide adequate counsel to criminal defendants."

Charge Is Dismissed Against Lead Figure in Defender Lawsuit
The New York Law Journal by Joel Stashenko - October 27, 2009

ALBANY, NY - An upstate appeals court has dismissed a case against a woman whose claims of shoddy representation from a public defender are at the center of a challenge to New York state's system of providing criminal legal services to indigent defendants. The felony charge against Kimberly Hurrell-Harring for bringing marijuana into a state prison cannot legally stand in light of a state Court of Appeals' determination in People v. Finley, 10 NY3d 647 (2008), that less than 25 grams of marijuana in prison is not dangerous contraband and that possession of smaller amounts of pot is a violation, as it would be outside of prison, the Appellate Division, Third Department, held last week. Although Ms. Hurrell-Harring's guilty plea to first-degree promotion of prison contraband came before the Court of Appeals' ruling in Finley, the high court clarified the meaning of an existing law that was still at issue in her appeal, the Third Department, ruled.

"Thus, applying the law as articulated in People v. Finley…the SCI [superior court information] is jurisdictionally defective because the amount of marijuana that defendant was alleged therein to have brought into the correctional facility was insufficient to constitute 'dangerous contraband' —a material element of the crime," Justice Leslie E. Stein wrote for a unanimous panel in People v. Hurrell-Harring, 101611/102295. "Inasmuch as the act of which defendant is accused does not constitute a crime, the judgment of conviction must be reversed." The Third Department decision appears on page 44 of the print edition of today's Law Journal.
Justices Robert S. Rose, William E. McCarthy and Elizabeth Garry joined the ruling. In Finley and a companion ruling, People v. Salters, the Court of Appeals decided that possessing small amounts of marijuana does not carry with it the "substantial probability" that it would contribute to death or serious injury within state prisons as do knives, razor blades or other potentially lethal weapons (NYLJ, June 11, 2008). Ms. Hurrell-Harring was arrested in 2007 for trying to smuggle marijuana in a condom hidden in her vagina to her husband, an inmate at the Great Meadow Correctional Facility in Washington County. She pleaded guilty to a promoting prison contraband charge and was sentenced to six months in jail and five years' probation by Washington County Court Judge Kelly S. McKeighan. Ms. Hurrell-Harring is one of 20 plaintiffs in Hurrell-Harring v. State of New York, the New York Civil Liberties Union-sponsored legal challenge to the state's legal defense system for indigent criminal defendants (NYLJ, Nov. 9, 2007).

The NYCLU contends the state has "abdicated" its right to provide adequate counsel to criminal defendants. Its complaint alleged that Ms. Hurrell-Harring's public defender took little interest in her case and failed to get her bail reduced despite the fact she had no prior criminal record. Ms. Hurrell-Harring pleaded guilty to the charge because she did not want to stay in jail indefinitely as she remained unable to meet bail, according to the NYCLU's complaint. She also did so on the advice of her public defender, the group said. She has served her jail time. With Ms. Hurrell-Harring now being represented pro bono on appeal by Paul, Weiss, Rifkind, Wharton & Garrison, the woman had her conviction vacated by the Third Department. "This is one of these cases, it is not that often you can say this, unfortunately, where you get the opportunity to do justice like this," said Roberta A. Kaplan of Paul Weiss yesterday. "It just shows what kind of a difference it makes to have counsel who zealously represents their clients' interests and counsel who don't." Ms. Kaplan said Paul Weiss attorneys were researching whether Ms. Hurrell-Harring automatically gets back the nursing license she lost when she pleaded guilty or has to apply to the state for reinstatement. Ms. Kaplan said the NYCLU lawyers working on the suit challenging the indigent defense system asked Paul Weiss attorneys to take Ms. Hurrell-Harring's criminal case for a possible reversal. Michael N. Berger of Paul Weiss argued before the Third Department on Ms. Hurrell-Harring's behalf. He was not available for comment. Washington County District Attorney Kevin C. Kortright did not immediately return a call yesterday. In July 2008, a 3-2 Third Department panel threw out the NYCLU's suit, with the majority ruling that a "massive overhaul" in the public defense system requires legislative action. An appeal of the decision is before the Court of Appeals. The state has until Nov. 13 to file its brief in the case. The NYCLU's brief was filed on Sept. 29. No date has been set for oral arguments, which are expected to take place early next year. Joel Stashenko can be reached at jstashenko@alm.com.