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Oct. 23, 2015
News Picks from NYSDA Staff
News Picks
Changes to Family Court and Criminal Law Appear in the Newly Enacted "Women's Equality" Bills. On Oct. 21, Governor Cuomo signed eight bills related to women's rights that deal with a variety of issues, including pay equity and protection of employees from sexual harassment and pregnancy discrimination. Two of the bills are of particular note to the public defense community: Chapter 267 (S.6/A.6262) and Chapter 368 (S.7/A.506).

Chapter 367 (effective Apr. 1, 2016) amends Family Court Act 153-c to allow the Chief Administrator of the Courts to promulgate rules to:

establish and implement a pilot program for the filing of petitions for temporary orders of protection by electronic means and for the issuance of such orders ex parte by audio-visual means in order to accommodate litigants for whom attendance at court to file for, and obtain, emergency relief would constitute an undue hardship or to accommodate litigants, for whom traveling to and appearing in the courthouse to obtain emergency relief, creates a risk of harm to such litigant.

Chapter 368 (effective Jan. 19, 2016), the "Trafficking Victims Protection and Justice Act," amends and adds many new sections of law, including:
  • Amendments to CPL 700.05, Correction Law 168-a and 168-d, Mental Hygiene Law 10.03, VTL 509-cc, and a host of Penal Law sections, including 60.13, 70.02, 70.80, 135.35, 240.37, 440.10, and 460.10, and many Penal Law article 230 sections;
  • New crimes: aggravated labor trafficking, a class C felony (Penal Law 135.37); patronizing a person for prostitution in a school zone, a class E felony (Penal Law 230.08); and aggravated patronizing a minor for prostitution, third degree (class E felony), second degree (class D felony), and first degree (class B felony) (Penal Law 230.11-.13); and
  • New provisions: affirmative defense to prostitution (Penal Law 230.01); and suspension and revocation of a class E (for-hire) driver's license where the holder is convicted of a specified Penal Law article 230 offense and the holder "used a for hire motor vehicle to commit such crime" (VTL 510-d).
New Law Expands Court Access for Deaf and Hard of Hearing People. Chapter 272 (S.5533-B/A.7939-A) expands Judiciary Law 390 ("Equal access to court proceedings for deaf or hard of hearing person") to make it applicable to persons who are hard of hearing and to add jurors and prospective jurors to the list of covered persons. The law, effective Sept. 25, 2015, gives the courts authority to, at the request of a person (party, witness, juror, or prospective juror) who is deaf or hard of hearing or on its own motion, and in lieu of appointing an interpreter, "provide an assistive listening device, a stenographer who can furnish communication access real-time translation or any other appropriate auxiliary aid or service."

Resources for attorneys about working with people who are deaf or hard of hearing include:
Information about the range of court interpretation services is available on the NYS Unified Court System's Language Access and Court Interpreters page. For individuals with disabilities who need accommodations to assure accessibility to the courts, the Court System's Accessibility page offers information about making accommodation requests and a list of Americans with Disabilities Act liaisons for each county.

No Imminent Danger and No Actual Harm Requires Reversal of Neglect Finding. In Matter of Christian J.S. (2015 NY Slip Op 07369 [4th Dept 10/9/2015]), the Fourth Department held that the Jefferson County Family Court erred in determining that the mother neglected her children as there was insufficient proof of "actual or imminent physical, emotional, or mental impairment to the child" and proof that the parent's failure was the reason for such actual or imminent impairment. See Matter of Afton C., 17 NY3d 1, 9 (2011). While the Lewis County Department of Social Services was investigating the mother for neglect, the father, who lived in Jefferson County, petitioned for and was granted custody in a Family Court Act article 6 proceeding, and the children were living and thriving with their father for two months before the neglect petition was filed. The petitioner moved to withdraw the petition soon after filing, asserting that child protective proceedings were unnecessary, but the court denied the motion and "directed petitioner to proceed with a fact-finding hearing." At the hearing, the petitioner elicited testimony only from the father and a caseworker from Lewis County. The caseworker testified about the 18 days during which the children lived with the mother in Lewis County, conceding that there was no effort to remove the children and that the mother improved the conditions of the home after the first visit. The father testified that he had no concerns about the living conditions while the children were living with the mother. Although the court acknowledged "that it was 'not comfortable [with the] level of proof,'" it ultimately found that the mother had neglected her children.

The Fourth Department reversed, concluding that because "the children were living with their father for over two months before the petition was filed, and thus they did not face 'imminent' danger of impairment," the petitioner had to prove "'actual ... physical, emotional or mental impairment to the child[ren]' that resulted in 'serious harm ... to the child[ren], not just ... what might be deemed undesirable parental behavior' (Nicholson v Scoppetta, 3 NY3d 357, 369)." Where the father did not have firsthand knowledge of the petition's allegations and the caseworker's testimony at most showed that the home conditions and the children's dress and hygiene were less than optimal, the Appellate Division found there was no proof that the conditions resulted in actual impairment.

Broad Impact of "Offender-Funded Justice System" Noted. A new report documents the financial burden created for women, particularly women of color, by imposition on family members of costs like fines and fees and incarceration itself, and subsequent reentry costs. In addition to being of interest to policymakers, the new report may also provide information potentially helpful to defense lawyers. "Who Pays? The True Cost of Incarceration on Families" is available on the website of the Ella Baker Center for Human Rights. A blog post on the Vera Institute of Justice website notes that comparing the "Who Pays?" report with research on the net worth of women of color "highlights the extent to which these financial burdens are placed on those who are least equipped to carry them, penalizing entire families and communities in the process." The post -- "Gender and Justice in America: Who pays in an offender-funded justice system?" - points out that black women, whose median net worth is $100, are "paying the criminal justice debts of their loved ones" and that "court costs alone average $13,607 ...."

This information supplements and complements two documents from the Center for Community Alternatives (CCA): " Sentencing for Dollars: the Financial Consequences of a Criminal Conviction" (2007) and "When All Else Fails, Fining the Family" (2015). Lawyers must advise clients of potential consequences of convictions in their cases. "Sentencing for Dollars" has been helping lawyers do that for several years.

The new report may also provide background support for arguing in individual cases that imposition of financial burdens - and even incarceration itself - will harm a client's family and create barriers to the client successfully becoming a productive member of the community. Note that a statutory goal of the Penal Law is "the promotion of [defendants'] successful and productive reentry and reintegration back into society." Penal Law 1.05(6). Also, the information might be useful when making arguments or applications under CPL article 420, e.g., remission of certain financial obligations imposed by the sentencing court (CPL 420.30) and deferral of mandatory surcharges (CPL 420.40).

On a related topic, The Marshall Project recently reported that "[t]he Obama administration has authorized a new set of regulations that would reclassify incarceration as 'involuntary,' giving parents the right to push the pause button on child support payments. The regulations are set to be published early next year and implemented by states by 2017."

Association News
Because All Families Matter, New York's First Ever Statewide Parent Representation Conference. NYSDA, the Office of Indigent Legal Services, and the Child Welfare Court Improvement Project are co-sponsoring New York's first CLE Conference for the hundreds of attorneys, social workers, and other staff who provide representation to parents in Family Court Act article 10 matters. In addition to hearing from nationally acclaimed authorities on child welfare, this two-day event offers the opportunity to foster relationships with other providers from around the state, including institutional providers, public defenders, conflict defenders, and assigned counsel. Visit the conference website for the full program, a fillable registration form, and information about the speakers. The registration deadline is November 5, 2015.

New Issue of NYSDA's Backup Center REPORT. The latest issue of the Public Defense Backup Center REPORT (August-October 2015) is now available on NYSDA's website; the print version will be mailed out shortly.The issue includes the New York Lesser Included Offenses Reference Guide.

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