The Late Big Ugly Budget Takes Historic Criminal Justice Reforms Backwards
Now that the budget has wrapped up, news reports are discussing ways in which reforms have been amended and law enforcement and district attorneys are reported to be backing the changes. NYSDA is disappointed in the rollbacks and other amendments in this year's State budget and the process that unfolded in the weeks leading up to its passage. We are also disheartened by the failure to include two important pieces of legislation, the bill to increase the assigned counsel rates and the Clean Slate Act. We stand ready to support defenders as we navigate these new challenges. 
 
Summary of Rollbacks and Changes to Reforms
The full text of the amendments can be found here. While NYSDA is scheduling an upcoming training to assist defenders with how these changes will impact their clients, below is a summary of some of the changes that appeared in one of the budget bills, S8006-C/A9006-C, including subparts B, D, E, F, and H of Part UU. Defenders may contact the Backup Center at info@nysda.org for assistance regarding these changes, as well as to share what is happening in your jurisdiction.
 
Appearance Tickets, Qualifying Offenses, and Considerations When Setting Non-Monetary Conditions (effective May 9, 2022)
 
Appearance Tickets
New provisions have been added to CPL 150.20(1)(b), increasing the number of instances in which law enforcement is not required to issue an appearance ticket. These include when the person being charged is 18 years old or more and is charged with either possessing a weapon on school grounds under PL 265.01-a (subparagraph ix) or with a hate crime under PL 485.05 (subparagraph x). The third new exception to the appearance ticket requirement is subparagraph xi, when the charged offense is a “qualifying offense” under bail provisions relating to offenses involving harm to an identifiable person or property in the newly amended CPL 510.10(4)(t) and 530.40(4)(t).
 
Qualifying Offenses Expanded
Both CPL 510.10(4) (qualifying offenses) and 530.40(4) (qualifying offenses when case pending before superior court) were also amended.
  • Identical amendments were made to (4)(t) of both sections. Specifically, paragraph t has been amended to add criminal possession of a firearm under PL 265.01-b as a current charge and a pending charge on which the person had been released on recognizance or under conditions. Also, paragraph t has been expanded to apply to cases where a person has been charged, but yet to be arraigned after receiving a desk appearance ticket for a separate felony or class A misdemeanor involving harm to an identifiable person or property or PL 265.01-b.
 
  • Definition of Harm Expanded - The phrase “harm to an identifiable person or property” now includes, but is not limited to, “theft of or damage to property.” However, if a court finds that “such theft is negligible and does not appear to be in furtherance of other criminal activity,” it shall release the person on their own recognizance or appropriate non-monetary conditions.
 
  • A new paragraph u was also added to both 510.10(4) and 530.40(4). It adds as qualifying offenses third-degree possession of a weapon (PL 265.02) and sale of a firearm to a minor (PL 265.16).
 
  • Similar changes were made to CPL 530.20(1)(b).
 
Considerations when Selecting Conditions of Release, Bail, or Remand
  • CPL 510.30(1) has been amended to change some of the factors that the court must consider in determining the least restrictive kind or degree of control or restriction necessary to ensure return to court. Factor g had been limited to cases where the current charge involved a member or members of the same family or household; that is no longer required. Now, for any qualified offense, a violation of an order of protection must be considered, as well as the history of use or possession of a firearm. And a new factor has been added related to “whether the charge is alleged to have caused serious harm to an individual or group of individuals.”
 
  • Subdivision 3 of CPL 530.40 has been modified to provide that, if the court finds that release on recognizance will not reasonably assure the principal’s return to court, it must consider ten factors when determining which non-monetary conditions to impose on the principal. Those factors include a client’s “activities and history,” current charges, criminal history, youthful offender or juvenile delinquent adjudications, previous record of “flight to avoid criminal prosecution,” history of violations of orders of protection, history of firearm usage, any charge including allegations of serious harm to an individual or group of individuals, and, in cases pending appeal, the merit of the appeal. One new category references situations in which monetary bail is authorized, but it is unclear how that is relevant since subdivision 3 is limited to cases where the court cannot set monetary bail.
 
  • The factors added to CPL 530.40(3) have also been added to CPL 510.10(1) and 530.20(1)(a).
 
Mental Health Considerations Added to Bail Law
New subdivisions have been added to CPL 500.10 (securing orders) to:
  • provide for “release or mental health assessment and evaluation” or “involuntary assessment pending release” of individuals who appear to be mentally ill;
  • require pretrial services agencies (PSAs) to provide certain information to courts upon request;
  • designate as confidential clinical records produced under the subdivision; and
  • direct courts to refer individuals to judicial diversion programs or other treatment courts where appropriate.
 
The amendments adding a new subdivision 3-c to 500.10 are found in Subpart F of Part UU. The first two paragraphs of the amendment address what the court may do when an individual over whom a court is exercising control for the purpose of ensuring future attendance at court proceedings “appears, by clear and convincing evidence, to be mentally ill at the present moment such that if left unattended their conduct may result in harm to himself or herself or others ….” Under specified conditions, the individual may be ordered to seek voluntary psychiatric assessment under Mental Hygiene Law 9.13 (the defendant must consent to a voluntary assessment) or be taken to a hospital to be assessed for involuntary commitment under MHL 9.43. The court may in some instances order certain entities such as PSAs to take the individual to a local hospital or, in some instances, authorize an ambulance service to take the person to a hospital specified in MHL 9.39 or a program specified in MHL 9.40 willing to receive the individual. Such hospitals must determine whether to retain the individual. If the person is hospitalized, a discharge plan including links to community-based services must be completed by the hospital, and defense counsel and PSAs, which are made “responsible for ensuring continuity of care,” must be notified.
 
PSAs must provide, upon court request, a limited summary of the assessment done and resulting placement, treatment, and discharge, “solely for the purpose of ensuring compliance” with release conditions and in accordance with applicable confidentiality law. “Conditions of release may not be revoked solely based on noncompliance with treatment.”
 
The final provision of the amendment says courts shall refer individuals “where appropriate” to a judicial diversion program or other appropriate treatment court.
 
Many practical and legal questions appear from an initial reading of the new law, and more will assuredly arise in implementation when the law becomes effective on May 9, 2022. NYSDA will continue analyzing the language of the new provisions and provide defenders with information as it becomes available.
 
CPL Article 245 Discovery Amendments (effective May 9, 2022)
  • When prosecutors file a supplemental certificate of compliance (COC), they are now required to detail the basis for delayed disclosure of materials so that the court may determine whether the delayed disclosure impacts the propriety of the COC. [new 245.50(1-a)]
  • Filing of supplemental COC will not impact the validity of original COC if it was filed in good faith and after exercising due diligence or the additional discovery did not exist at the time the original COC was filed. [new 245.50(1-a)]
  • If a party is aware of a potential defect or deficiency related to a COC or supplemental COC, “the party entitled to disclosure shall notify or alert the opposing party as soon as practicable.” [new 245.50(4)(b)]
  • Challenges to COCs and supplemental COCs must be made as soon as practicable. However, “nothing in this section shall be construed to waive a party’s right to make further challenges, including but not limited to a motion pursuant to [CPL 30.30].” [new 245.50(4)(c)]
  • Remedies or sanctions imposed for non-compliance have not changed, and may still include a dismissal in whole or in part, but must be “appropriate and proportionate to the prejudice suffered by the party entitled to disclosure.” [amended 245.80(1)(a)]
  • The court may order dismissal of all or some charges if, “after considering all other remedies, dismissal is appropriate and proportionate to the prejudice suffered by the party entitled to disclosure.” [amended 245.80(2)]
  • Appeals from dismissals of all or some charges: The bill includes a new CPL 450.20(12) that allows prosecutors to appeal orders dismissing some or all charges for non-compliance with discovery obligations under CPL 245.80(2). Note: This type of dismissal should be distinguished from speedy trial dismissals. If the prosecutor appeals, a new CPL 530.50(3) authorizes an application for release or bail if the defendant is charged with a qualifying offense in the remaining counts of the accusatory instrument.
  • Automatic disclosure no longer applies to a simplified information charging a VTL traffic infraction, or to an information charging one or more petty offenses as defined by a village, town, city, or county municipal code that do not carry a statutorily authorized sentence of imprisonment, and where the defendant stands charged before the court with no crime or offense. The defendant may file a motion for discovery, and the court must advise the defendant of the right to file such a motion at the first appearance. [amended CPL 245.10(1)(a)(iii)]

The Legal Aid Society has shared its Practice Advisory on Discovery and "Kalief's Law" that provides context for and analysis of the amendments noted above. They have also shared a document that contains the current CPL article 245 statutory language with the 2022 and 2020 amendments noted. We are grateful to Peter Mitchell, Jon Schoeffel, and all at The Legal Aid Society for sharing these resources with the defense community. The documents are also available on NYSDA's Discovery Reform page.
 
Raise The Age Changes
Effective immediately, the Family Court Act (FCA) statute of limitations has been amended to allow juvenile delinquency petitions to be filed against 16- and 17-year-olds until their 20th birthday (rather than their 18th birthday), or the limitations period in CPL 30.10, whichever occurs earlier. Also included was a new FCA 309.1 regarding voluntary community based treatment referrals. Worth noting is the following language: “No statements made to probation when discussing any service referrals under this section shall be admissible in a fact-finding hearing.” See subpart E of Part UU here (pp.12-13). 
 
Kendra’s Law Amended
Debate about proposed changes to Kendra’s Law, the 23-year-old statute giving courts the power to order medical treatment of people with mental illness under certain conditions, was found in media reports during the run-up to the passage of the state budget. A March 29th piece in the New York Law Journal described opposition to the plan to expand Kendra’s Law. An April 5th Times Union article reported the possibility that amendments to the bail laws might take the place of the proposed expansion of “assisted outpatient treatment” (AOT), which many mental health advocates opposed, while an op-ed defended Kendra’s Law against accusations that it infringes on civil liberties. Ultimately, provisions dealing with people who have or appear to have mental illness were added to the bail laws as noted above, and changes were also made to Kendra’s Law. The amendments can be found in Subpart H of Part UU. The sunset date for Kendra’s Law is now June 30, 2027.
 
A new subdivision iii has been added to MHL 9.60(c)(4), which adds to the list of criteria for when a person with a history of noncompliance with treatment can and cannot be ordered to receive AOT. The new provision says AOT can be ordered if treatment noncompliance led to an order for AOT that has expired within the last six months and the person then experienced “a substantial increase in symptoms” that substantially interfere with or limit their major life activities as determined by the director of community services previously responsible for coordinating and monitoring the person’s care.
 
MHL 9.60(h)(2) was also amended to allow an examining physician meeting the criteria of the paragraph to testify by video conference rather than in person after either diligent efforts to appear in person and with the consent of the person who is the subject of the hearing or upon the court’s order upon a finding of good cause.
 
Finally, a new subdivision was added to MHL 9.60, allowing a director of community services to require an inpatient services provider to disclose contemporaneous information about a person receiving AOT. The information in question is not to be made public or released by the director to others except as already authorized by law. The confidentiality of treatment records under Kendra’s Law was the subject of litigation prior to the current amendments (see, eg, Matter of Miguel M., 17 NY3d 37 (5/10/2011), and may arise again.
 
The changes to Kendra’s Law are effective immediately. Defenders whose clients have been or may be ordered to receive AOT may wish to consult with Mental Hygiene Legal Services or contact the Backup Center.
 
“How New York State Just Rolled Back Criminal Justice Reforms”
The above-titled article published in New York Focus notes, “[t]he final budget included rollbacks of New York’s landmark 2019 bail reforms, changes to its discovery laws, and expansions of pre-arraignment detention and involuntary inpatient mental health treatment — changes that have been demanded for years by proponents of tough-on-crime policies and have met with resounding condemnation from reform advocates.” Roger Clark, an advocate with VOCAL-NY’s Civil Rights Union, said, “[t]here will be more deaths in jails and more wrongful convictions as a result.” During the vote, Assemblymember Latrice Walker spoke powerful words, which were also shared on Twitter. “It is cruel to say, ‘I will give you housing, but only in jail. I will treat your mental health, but only in jail. I will feed you, but only in jail.’ Pretrial incarceration is not the answer. I want public safety, but not at the expense of our civil rights.” Assemblymember Walker had also issued a release earlier in the week to push back against any rollbacks.
 
No Raise for Assigned Counsel Attorneys
In a shock to assigned counsel attorneys who were hoping to see their first raise in nearly 20 years, the Legislature and Governor failed to raise the rates of $75 and $60 per hour, which amounts to near minimum wage after overhead costs are paid. The failure comes despite urging from numerous attorneys, NYSDA and other defense organizations, advocacy groups, and the Chief Judge of New York, to name a few. Philip Katz, partner at Fink and Katz, president of the Manhattan Family Court Assigned Counsel Panel, and member of the Board of the Association of Assigned Counsel - New York State states, “[t]he Governor has declared a silent war on the indigent, who are in disproportionally people of color by her interference with the legislature’s efforts to raise ACÁ rates. We will not permit her to sweep her actions under the rug.” As previously reported in the Dec.10, 2021, edition of News Picks, a lawsuit filed against the State last year, alleging that by failing to increase compensation for over 17 years, the State is failing its obligation to ensure the constitutional right to effective legal representation for public defense clients, is still pending.
 
This Year’s Budget Sees a Family Court Funding Increase
For the second straight year, the State budget includes money for family defense representation. This year, the State appropriated $4.5 million, which will be distributed by the Office of Indigent Legal Services (ILS) through a competitive grant process. Although this is a $2 million funding increase, it is only half of the $9 million requested. NYSDA will continue to work with ILS and family defenders to get the Executive and the Legislature to significantly increase the level of state funding for family defense in the years to come.
 
As reported in the Nov. 29, 2021, edition of News Picks, last year’s money was distributed to 5 counties under the ILS Upstate Family Defense (Child Welfare) Quality Improvement & Caseload Reduction Grant. Cortland, Erie, Monroe, Steuben, and Suffolk counties will each receive up to $500,000 over a three-year period.
 
Speedy Trial Dismissals and Protective Order Reversal 
People v Brown. An Albany City Court case found that the prosecution’s initial certificate of compliance (COC) was invalid for not providing a police department incident report until months later. By means of explanation, the prosecutor simply said that the COC was filed in “good faith.” The court found that to be a “bare conclusory statement” that “did not recount the steps they took to obtain the Incident Report, or even to ascertain its existence.” 2022 NY Slip Op 50234(U) (4/4/2022).
 
People v Weissinger. A justice court decision out of Monroe County also declared a COC invalid due to the prosecution’s failure to provide 911 calls and a motor vehicle accident report in time. A key factor in the court’s analysis was that the assigned prosecutor’s departure from the office was not an exceptional circumstance or a satisfactory reason for delay. As media outlets breathlessly recite the various reasons for prosecutors quitting their posts, this is an especially useful case to cite going forward. 2022 NY Slip Op 50221(U) (3/23/2022).
 
People v Escobales. The Third Department vacated a county court protective order that was granted after the prosecution filed an application ex parte, merely providing notice of the application and proposed order to defense counsel. While the lower court did hold a hearing before granting the order, the application was never disclosed to defense counsel. Defense counsel filed for expedited review under CPL 245.70(6), and the Third Department found that the trial court erred by making no inquiry as to why defense counsel should not have access to the application, and that “exclusion of defense counsel was not only excessive, but entirely unnecessary.” 2022 NY Slip Op 02354 (4/8/2022).
 
OCFS Announces Changes to SCR Reporting Related to Reports of Cannabis Use
The NYS Office of Children and Family Services (OCFS) distributed an informational letter on Apr. 7, 2022, notifying local DSS offices about a change in policy and procedure regarding reports of cannabis use made to the Statewide Central Register (SCR). The policy change means that “[t]he SCR will not register a report of suspected child abuse or maltreatment when the only reported concern is that a birthing parent and/or an infant tested positive for the presence of cannabis. Additionally, the SCR continues to not register a report when the only reportable concern is that a parent uses cannabis products.” However, the report will be registered “if the caller provides a reasonable cause to suspect that a child’s physical, mental, or emotional condition has been harmed or is at risk of being harmed by a parent and/or [person legally responsible] ….” These changes were made in response to the 2021 Marihuana Regulation and Taxation Act (MRTA). It remains to be seen what, if any, effect this change will have on the policy that some hospitals employ of testing expectant mothers for drugs. 
 
Lawsuit Filed Over Implementation of Host Family Homes Regulations
Three defender organizations that represent children in foster care and counsel from Proskauer issued a press release announcing the filing of a lawsuit against the New York State Office of Children and Family Services (OCFS) over the implementation of the newly adopted host family homes regulations that went into effect late in 2021. “[T]he groups charge that the program unlawfully creates a shadow foster care system that strips away core protections afforded to children and parents in foster care under New York State law.” Additional information on the host family regulations can be found in the Dec. 10, 2021, edition of News Picks.
 
Article Examining TBI in Criminal Trial Process Available
An article published in the Fall 2021 Rutgers Law Review begins by noting that someone with a traumatic brain injury (TBI) is at greater risk of becoming involved in the criminal legal system “due to the role that many TBIs play in impulse control and judgment.” [Footnotes omitted throughout.] To illustrate how TBI is grossly misunderstood by many in that system, the article discusses several cases, focusing on that of Lisa Montgomery, who was executed in 2021. Noting that TBI “serves as a catch-all term for myriad types of organic brain injury and damage,” and that TBIs can cause, among other things, a “change in emotional regulation,” the article goes into detail about the range of injuries and effects that can exist within the category of TBI. The authors “believe that TBI evidence could be significant in some criminal cases at all stages of the criminal process.” While much of the article involves discussion of death penalty cases, many of the points made about the need to look for and address clients’ TBIs may have application in many other cases.
 
The article mentions everyday activities from contact sports to falls that can lead to TBIs, and acknowledges but does not emphasize that military personnel and veterans exposed to explosions in combat or training are at risk. According to research posted on the Veterans Administration website, “[t]he Defense and Veterans Brain Injury Center (DVBIC) reported nearly 414,000 TBIs among U.S. service members worldwide between 2000 and late 2019. More than 185,000 Veterans who use VA for their health care have been diagnosed with at least one TBI.” As noted at the top of this edition of News Picks, NYSDA’s Veterans Defense Project assists defenders representing clients whose service may have contributed to their involvement in criminal or family legal matters.
 
Constitutionality of Geofence Warrant Challenged in Federal Court
As posted on the North Carolina Office of Indigent Defense Services Forensic Resources webpage, a federal district judge has “ruled that use of geofence data in a Virginia case violated the Fourth Amendment.” The article notes the ubiquity of geofence searches; the case in question, United States v Chatrie, describes them as warrants that seek location data from Google or other tech giants that collect location data “for every user within a particular area over a particular span of time.” In Chatrie, information that Google provided in response to such a warrant following a bank robbery led police to the defendant. The opinion discusses in some detail the collection and production of location data before turning to the geofence warrant in question. The court said that despite its “concerns about the validity of this warrant and the adoption of unsupervised geofence warrants more broadly,” the defendant’s motion to suppress was denied because the officers sought the warrant, which lacked particularized probable cause, in good faith. The court said that the privacy issues raised should be addressed by a different branch of government: “[t]houghtful legislation could not only protect the privacy of citizens, but also could relieve companies of the burden to police law enforcement requests for the data they lawfully have.”
 
This decision was noted in a recent edition of Decrypting a Defense, the monthly newsletter of the Legal Aid Society’s Digital Forensics Unit. It points to a TechCrunch post on the release by Google last year of figures revealing that “Google has received thousands of geofence warrants each quarter since 2018,” which “at times accounted for about one-quarter of all U.S. warrants that Google receives.”
 
Broome County Sued Over Jail’s Mistreatment of a Transgender Woman
A press release from the New York Civil Liberties Union (NYCLU) announced a lawsuit by Makyyla Holland “against Broome County, the Broome County’s Sheriff and officials at Broome County Jail seeking redress for violence, threats to her safety, denial of medical care, and discrimination inflicted on her because she is transgender.” The press release says that “[f]or transgender, gender nonconforming, nonbinary and intersex (TGNCNBI) people, jail disproportionately results in harassment, degradation and violence.” Filing the complaint in federal court were attorneys from the NYCLU, the Transgender Legal Defense & Education Fund (TLDEF), and pro bono counsel Paul, Weiss, Rifkind, Wharton & Garrison LLP. TLDEF and the NYCLU and the firm of BakerHostetler settled a similar suit in Steuben County in 2020 that established “one of the strongest jail or prison policies in the country protecting the rights of transgender, gender nonconforming, nonbinary, and intersex people in custody,” according to an NYCLU announcement. The particular vulnerability of transgender people of color was referenced in both posts. Also see the NYCLU toolkit on the rights of transgender people who are incarcerated, here.
 
Defenders who have questions about representing transgender clients are encouraged to contact the Backup Center.


Association News


Upcoming Training
 
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.
 
Save the Dates: In-Person Training and Events Will Be Returning
 
NYSDA’s Annual Meeting and Conference will be held from July 24 to 26, 2022. The event will be held at the Gideon Putnam in Saratoga, with CLE sessions available both in person and online. More details will be available soon.
 
Friday, September 30, 2022: NYSDA will be hosting a full-day Family Court Program at Syracuse University College of Law. The training will be available in person and online. More details will be available soon.