Discovery Report Reveals Positive Impact: NYSDA Calls on Lawmakers to Resist Rollbacks
In a joint press release, NYSDA, NYSACDL, and CDANY shared "The Impact of Discovery Reform Implementation In New York," which reports the positive impact CPL article 245 has had across the state since its rollout. The New York Law Journal covered the release of the report. NYSDA’s Susan Bryant is quoted: “[t]his report offers an important reminder of why New York enacted comprehensive discovery reforms in 2019. Our old laws kept people in the dark about the evidence against them and resulted in wrongful convictions, pretrial delays, and unfairness. The new discovery laws have had a positive impact on the lives of New Yorkers around the state. Defense attorneys are able to provide meaningful advice to their clients, conduct informed investigations, file more specific and informed motions, and engage in meaningful negotiations. Current proposals couched as ‘tweaks’ to CPL article 245 will undermine the fundamental principles of discovery reform and will impede the strides made towards greater transparency and fairness in our criminal legal system. New York has taken the blindfold off and this report makes clear that we must never put it back on.”
 
Bryant also discussed the problems with potential roll backs to bail in particular, as covered by North Country Public Radio. In the final days of budget negotiations, press coverage has been flooding news everywhere on lawmakers re-visiting reforms, from all across the state including an Opinion entitled “Leave criminal justice reforms alone; Gov. Hochul’s proposed changes won’t work and will make New York less fair.”
 
Speedy Trial and Facial Insufficiency Dismissals
 
People v Jackson. A Bronx case was dismissed for facial insufficiency when criminal mischief charges based on video surveillance were deemed to not have adequate links to the defendant. Of particular note is the court’s finding that in cases like this, the relationship of the parties must be established in the charging document -- or in other words, “the prosecution must establish the deponent’s or informant’s basis for asserting that the defendant is the perpetrator.” (2022 NY Slip Op 22082 [Crim Ct, Bronx Co 3/10/2022]).
 
People v Miller. A Brooklyn case was dismissed on speedy trial grounds after finding that a certificate of compliance and statement of readiness electronically filed at 7:10pm on the 90th day was not timely served. The ruling hinges on the Administrative Order that created the Electronic Document Delivery Service system, which says that papers are “presented for filing” after submittal but that the request may “take one or more days” to be “reviewed and approved.” See also People v McDuffie, posted on NYSDA’s Discovery Reform Implementation webpage.
 
The Miller court also declined to find extraordinary circumstances for the prosecution’s inability to secure 911 calls and radio runs from the NYPD amidst pandemic furloughs and staffing issues. Citing the prosecution’s need to demonstrate due diligence even in light of extraordinary circumstances, the court held that the prosecution could not meet that burden in light of the ADA’s initial subpoena to the NYPD only occurring on the 82nd day. (2022 NY Slip Op 22085 [Crim Ct, Kings Co 3/10/2022]).
 
People v McDonald. The First Department reversed a murder conviction after a jury trial, finding that the defendant who spent over six years incarcerated pretrial was deprived of his constitutional right to a speedy trial. The court made particular note that the case was “reassigned to successive” prosecutors, with the third and final prosecutor waiting a year before seeking to obtain a DNA sample from client to compare to a cup found at the scene. (2022 NY Slip Op 02099 [3/29/2022]).
 
Court of Appeals: SARA Housing Restrictions Apply to Postrelease Supervision
“The residency restriction of the Sexual Assault Reform Act (SARA) applies equally to eligible offenders released on parole, conditionally released, or subject to a period of postrelease supervision.” So says a short memorandum opinion, filled with references to reducing crime and making communities safer, issued by the Court of Appeals on March 22. Matter of Alvarez v Annucci, 2022 NY Slip Op 01957. The petitioner on postrelease supervision whose article 78 petition was the subject of the appeal had tried, at the end of his prison term, to seek residence in a New York City shelter but was instead placed in Fishkill Correctional Facility, a prison with the “pseudonymous title of ‘residential treatment facility (RTF)’” as Judge Wilson, joined by Judge Rivera, described it in dissent. The petition seeking release and “transfer to a genuine RTF or to approved housing” was rejected despite the plain text of SARA, which refers to people on parole or conditional release, and to “no one else,” as the dissent noted. How was the plain language of SARA avoided? In the words of the dissent, “[t]o our longstanding, bedrock canon of statutory interpretation, the majority’s brief memorandum adds the coda: ‘except when it comes to sex offenders.’”
 
HALT Takes Effect, SCOC Memo on HALT Implementation, Pushback Continues
A Chairman’s Memorandum from the State Commission of Correction (SCOC) issued on March 21, 2022, announced the adoption (on an emergency basis) of regulations regarding segregated confinement and residential rehabilitation units (RRUs). Public comment will be accepted for 60 days after the regulations are published in the State Register; the SCOC will then “either undertake final adoption or make revisions.” The March 31st effective date of the regulations coincides with the effective date of the Humane Alternatives to Long-Term Solitary Confinement (HALT) Act. The memo says that the regulations are “designed to structure the various requirements of the HALT Act within the systemic construct of the Commission’s existing regulations to provide facility administrators with a more straightforward and organized source of reference” and amend existing disciplinary regulations to conform to HALT. The HALT Act passed a year ago to great fanfare (see, e.g., the Senate’s announcement), but has met stiff resistance.
 
The New York State Correctional Officers and Police Benevolent Association (NYSCOPBA) is among those trying to halt HALT, recently claiming that violence in New York’s prisons has increased dramatically. As noted in the Plattsburgh Press-Republican, “the union believes there is a direct correlation between the reduction of disciplinary procedures within the prisons and the rise in violence, and that HALT would only exacerbate the issue ….” Meanwhile, controversy over solitary continues in New York City where new mayor Eric Adams vowed to bring back solitary while the City Council still has “not introduced a measure that would end solitary confinement in city jails” despite campaign promises to do so, as The City reports. Outside New York City, other jails continue to present issues, though press coverage is hard to find. A New York Daily News article in February pointed out that solitary was among problematic conditions leading ICE detainees held at the Orange County Jail to begin a hunger strike. Solitary continues to harm people across the country, as noted by a Solitary Watch article entitled “COVID-Fueled Solitary Confinement Still Plagues Prisons and Jails.”
 
Less is More Slowly Gets Implemented
As noted in the March 22nd edition of News Picks, the state’s implementation of Less is More has been sluggish. Delays of recognizance hearings have been found to be illegal. The Legal Aid Society won their habeas writ in the Bronx, with the judge finding that clients detained on parole violations prior to March 1 are still entitled to recognizance hearings, contrary to DOCCS interpretation of the law. Per DOCCS, all hearings for any client detained prior to March 1 should be held by the end of the month.
 
Perhaps in light of the decision, DOCCS finally seems to be implementing other provisions of the law. The Department says they are now taking 30 days off sentences for every 30 days out of violation status, meaning that as many as 8,000 parolees should be discharged by the end of March, according to recent article. NYSDA is presenting a training on Less is More on Tuesday, April 5th. For details and program registration, click here. The registration deadline is Monday, April 4th.
 
Invitation to Participate in DVSJA Statewide Task Force Practice Survey
The Domestic Violence Survivors Justice Act (DVSJA) Statewide Task Force has created a survey related to sentencing practices around the state in new cases and resentencing cases under CPL 440.47. The survey is being conducted using Survey Monkey, and will be anonymous if desired, but will offer opportunities to share information and join contact lists. We urge all practitioners to participate.
 
Unified Court System 2021 Annual Report: COVID-19, Backlogs, and More
The “2021 Annual Report” of the NYS Unified Court System stresses efforts made to address backlogs stemming from COVID-19 and notes that “the court system commenced over 2,000 jury trials and resolved nearly 1.8 million cases” despite pandemic challenges. Benchmarks of the “Excellence Initiative” that the Chief Judge instituted well before the pandemic had to change, the report says; the Chief Judge assures readers that “the lessons and principles” of the Initiative are being applied to efficiently manage the court system’s dockets and clear the backlogs. Backlogs are not unique to New York; a March 25 article in the Wall Street Journal noted this nationwide problem under a headline suggesting “It May Take Years to Catch Up.”
 
The Chief Judge’s message in the report also touts the proposal to restructure much of the court system (which is discussed in the February 28th edition of News Picks). The first section of the report, headed “The Excellence Initiative,” includes discussion of the restructuring plan and developments in court use of technology such as the implementation of online payment of criminal fines and fees. The “Equal Justice in the Courts” section discusses, among other things, the 2020 report by the Special Adviser and the 2021 report on the implementation of the 2020 recommendations, noted in the Nov. 29, 2021 edition of News Picks.
 
Under “Access to Justice,” the 2021 Annual Report mentions efforts to address the “digital divide” and language access, among other issues. The “Criminal Justice” section focuses on gun crimes, specifically on speeding up processing of such cases. Reports from the “Commission to Reimagine the Future of New York’s Courts” are discussed; News Picks noted such reports on April 16, 2021. Among topics discussed under “Family and Society” are “Reducing Time to Permanency.” The goal of the group is to devise strategies to reduce the time that permanency is established in cases pending before the court. The stakeholders involved include representatives from New York State Office of Children and Family Services, New York City Administration for Children’s Services’ Division of Family Permanency Services and Family Court Legal Services division. It is unclear if this goal will result in the acceleration of attempts to terminate parental rights, or whether any input was sought from defender or parent groups. In the “Problem-Solving Courts and Initiatives” section, mentions are made of new courts such as Emerging Adults Court and the many established ones that make up the over 300 boutique courts across the state. Among them are Veterans Treatment Courts; NYSDA’s Veterans Defense Program (VDP) presented training about these courts over the last year, as set out in the VDP’s 2021 Report.
 
The various other sections of the court system’s annual report include one on “Access to Information,” which notes the use of social media, the Emergency Alert Portal for news of court closings or delays, eTrack, and other services. Also included in the report is information on court funding, structure, caseload, and legislative measures deemed of interest.
 
Legal Aid Sues NYC Over DNA Database
Earlier this month The Legal Aid Society filed a federal class action lawsuit against the NYPD and the Office of the Chief Medical Examiner, claiming that the surreptitious collection and storage of people’s DNA – even without an accompanying arrest, let alone conviction – violates the Fourth Amendment. The city collects and stores this DNA without a court order or a warrant, and without any of the safeguards that regulate both the state and federal DNA databases. As reported by The New York Times, often the DNA samples are obtained after NYPD officers offer clients a bottle of water, or in at least one case offer a minor a cigarette. The suit aims to not only create regulations around the city database but also to remove many of the samples currently stored in it.
 
A Guide to Downward Modifications
In the March 28th edition of the New York Law Journal, Joel R. Brandes, a New York matrimonial law attorney, takes readers on a journey of the statutory and case law regarding downward modifications of existing maintenance and child support orders. He concludes, “[a] downward modification of a support order will be granted where a party presents credible evidence that he lost his job through no fault of his own and made a good faith effort to obtain new employment commensurate with his qualifications, education, ability, and experience. A party who loses his job due to an illness or injury will be granted a downward modification where he provides competent medical evidence of his disability, and establishes that his disability renders him unable to work, and that he does not have the ability to provide support through some other type of
employment.” Mr. Brandes has previously written other items related to this topic, including a New York Law Journal article entitled “Understanding the Support Magistrate Objection Process,” a link to which can be found in the November 4, 2020, edition of News Picks.
 
Articles of Interest
The following publications, several if not all of which address or touch on issues of race in the legal system, may be of interest.
 
“The Master’s Tools and a Mission: Using Community Control and Oversight Laws to Resist and Abolish Police Surveillance Technologies,” UCLA Law Review (written March 2, 2022). The author of this article, Vincent Southerland, was a co-presenter of the “Recognizing Systemic Bias” session during NYSDA’s 2020 Annual Conference. His newest writing describes his qualitative analysis of Community Control Over Police Surveillance (CCOPS) laws and the community control mechanisms associated with them, “surfacing their benefits and shortcomings.” CCOPS laws in four West Coast cities – Seattle, Oakland, Berkeley, and San Francisco – are discussed along with model legislation created by the American Civil Liberties Union in 2016. He concludes that, while far from ideal, these laws and mechanisms “should be considered among the suite of tools that advocates can use to end the raced, classed, violent status quo that characterizes the deployment of police surveillance technologies in particular and the criminal legal system in general.”
 
“Reckless Automation in Policing,” Berkeley Technology Law Journal Online (written 1/15/2022). The abstract says “[a]utomated decision-making plays an increasingly larger role in policing,” and that in analyzing that growth, “this essay starts with a simple observation: by focusing on automation’s harms to persons first.” Among subjects grappled with are algorithms, experimentation, and ethics.
 
“Building an Anti-Racist Prosecutorial System: Observations From Teaching a Domestic Violence Prosecution Clinic,” Rutgers Law Review (written 11/14/2021). Written by Mary A. Lynch, the Kate Stoneman Chair in Law and Democracy at Albany Law School, this article draws from headlines, studies, and the author’s own experiences and observations while working with survivors of domestic violence and intimate partner violence in a law school clinical setting. Lynch’s six suggestions range from “continue to advocate for racial impact studies at district attorney offices” to “‘start by believing’ that women of color are harmed by intimate crimes” and “adopt trauma-informed thinking.”
 
“To try or not to try — remotely. As jury trials move online, courts see pros and cons,” NPR (March 18, 2022). Even as New York courts increase in-person proceedings (noted in the March 22nd edition of News Picks), debate continues across the country about an ongoing role for remote trials. This article presents some examples of the range of approaches and issues.
 
“Courts Without Court,” Vanderbilt Law Review (written March 7, 2022). Like the news story above, this law review article discusses the role of virtual courts, using “recent experiments with virtual courts to reimagine a future without criminal courthouses at the center.” According to the abstract, “[b]y studying post-COVID 19 disruptions around traditional conceptions of place, time, equality, accountability, and trial practice, this Article identifies how legal power can be shifted away from the courts and into the community.”
 
Family Justice Law Center Launched
An organization dedicated to “bringing affirmative litigation on behalf of families to challenge and remedy the abuses” of the so-called child welfare system launched recently in New York City. The Family Justice Law Center (FJLC) is “a part of the Urban Justice Center’s Social Justice Accelerator program.” The FJLC website notes issues that need to be addressed. These include Fourth Amendment violations when police and caseworkers forcefully enter homes, awaken children, and remove them without a court order when removal is not absolutely necessary; non-consensual hospital testing of pregnant women and newborn babies for drugs and alcohol; and delays in removal hearings. FJLC plans to bring lawsuits against government agencies that violate families’ rights. The new center boasts a diverse Academic Advisory Board with members from law schools across the country as well as a Community Advisory Board with members who have been affected by the existing system. The Executive Director and Founder is David Shalleck-Klein.



Association News


Tuesday, April 5, 2022, 12:00 – 1:30 pm: Less is More: A Whole New World of Parole Revocation, with Norman Effman, Wyoming County Public Defender, Executive Director, Wyoming County-Attica Legal Aid Bureau; Lorraine McEvilley, Director, Parole Revocation Defense Unit, The Legal Aid Society; and Leah Nowotarski, Assistant Public Defender, Wyoming County Public Defender Office. This program will provide 1.5 CLE hours in Professional Practice. There is no cost for this program. For details and program registration, click here.
 
Tuesday, April 12, 2022, 1:00 – 4:30 pm: The Fundamentals of Litigating Family Offense Cases, with James Farrell, Assistant Public Defender, St. Lawrence County Public Defender’s Office; Linda Gehron, Attorney & Counselor; Sarah Holt, Assistant Conflict Defender, Monroe County Conflict Defender’s Office; Philip Katz, Partner, Fink & Katz; and Darius Lind, Assistant Public Defender, Monroe County Public Defender’s Office. This program will provide 3.5 CLE hours in Professional Practice. There is no cost for this program. For details and program registration, click here.
 
Friday, April 29, 2022, 12:00 – 1:30 pm: The Indian Child Welfare Act of 1978: The Gold Standard of Child Welfare, with Sheldon Spotted Elk, Senior Director of Judicial and National Engagement, Casey Family Programs. This program will provide 1.5 CLE hours in Professional Practice. There is no cost for this program. For details and program registration, click here.
 
Friday, May 6, 2022, 12:00 – 2:30 pm: Litigating Medically Complicated Abuse Cases: A Toolbox for Family Court Defenders, with Emma Alpert, Supervising Attorney, Medically Complicated Team, Family Defense Practice, Brooklyn Defender Services; and Jessica Horan-Block, Director of Complex Litigation, Family Defense Practice, The Bronx Defenders. This program will provide 2.5 CLE hours in Professional Practice. There is no cost for this program. For details and program registration, click here.
 
Tuesday, May 10, 2022, 1:30 – 3:00 pm: The START Act: Rebuilding Lives Through Criminal Record Relief, with Zoë Root, Assistant Director, Survivors Advocacy Practice, Center for Appellate Litigation; and Abigail Swenstein, Staff Attorney, The Exploitation Intervention Project, The Legal Aid Society. There will be no cost for this program. Details and program registration coming soon.
 
Thursday, May 12, 2022, 12:00 – 1:00 pm: What Do You Mean, I’m Not Allowed to Drive?!, Collateral Consequences to Driving Privileges in 1192 Prosecutions, with Jonathan Cohn, Gerstenzang, Sills, Cohn & Gerstenzang. There will be no cost for this program. Details and program registration coming soon.