State Budget Contains Big News

Criminal Justice Reforms
For the criminal defense community, the highlights of this year's state budget are the landmark reforms to bail, discovery, and speedy trial, which take effect on Jan. 1, 2020. Additionally, many clients who are not US citizens should benefit greatly from the reduction of the maximum sentence for misdemeanors from one year to 364 days; this will affect a number of immigration law provisions regarding removal from the country. See below for more information. Among other legislative changes in the budget are several intended to aid people who have been incarcerated in reentering the community ( L 2019, ch 55, Part II [pp. 35-48] and ch 59, Part GGG [pp. 96-97]).

Defense lawyers have a lot to learn now and over the next eight months. NYSDA will be working to provide analysis and training in advance of the effective date of the bail, discovery, and speedy trial reforms. NYSDA's 52nd Annual Meeting and Conference (July 21-23, 2019 in Saratoga Springs) will feature several presentations on the new legislation. Watch for information on other reforms as well. A preliminary practice advisory, courtesy of The Legal Aid Society, is available here.

NYSDA congratulates the many defenders and advocacy groups that worked hard to make these reforms a reality.

Public Defense Spending Largely as Expected
With a few exceptions, most public defense spending held steady or increased in the FY 2020 budget. The aid to localities appropriation from the Indigent Legal Services (ILS) Fund increased; distribution authorized in the budget is $204,810,000 ($81,000,000 general distribution for counties and New York City, $23,810,000 for continued implementation of the settlement of the Hurrell-Harring (H-H) lawsuit in five counties, and $100,000,000 for statewide expansion of H-H, which began in 2018) ( L 2019, ch 53 [pp. 922-928]). The ILS Office also received an increase in operating funds, to $6,090,000 ( L 2019, ch 50 [pp. 459-461]).

NYSDA's total funding remained $2,809,000, which includes funding for the Veterans Defense Program. All of us at NYSDA thank the many public defenders, veterans groups, and others who supported our funding request Also receiving the same appropriation as last year are the Indigent Parolee Program ($600,000 [ L 2019, ch 53 (p. 79)]) and the loan forgiveness program for defenders and prosecutors ($2,430,000 [ L 2019, ch 53 (p. 78)]). Aid to Defense, which has been distributed to 25 counties and The Legal Aid Society, dropped from $8,099,000 to $7,658,000 ( L 2019, ch 53 [pp. 77, 78]).

SHOCK Incarceration Eligibility Expanded
As part of the budget ( L 2019, ch 55, Part KK [pp. 49-50]), the legislature expanded eligibility for the SHOCK incarceration program to include persons convicted of second-degree burglary under Penal Law 140.25(2) (building is a dwelling) and second-degree robbery under Penal Law 160.10(1) (aided by another person actually present). The changes in Penal Law 60.05 and Correction Law 865(1) apply to judicial SHOCK orders (where the sentencing judge expressly directs that the defendant be enrolled in SHOCK) and discretionary SHOCK placement (where DOCCS selects for participation). A person becomes eligible for SHOCK when he or she is within 3 years of parole or conditional release, and eligibility is determined on a rolling basis (i.e., the initial sentence can be longer than 3 years). These changes go into effect on May 12, 2019 and do not depend on the date of the offense. Thus, beginning May 12, sentencing courts will have the authority to order SHOCK placement for these two “violent” crimes when the defendant otherwise meets SHOCK eligibility requirements [see Correction Law 865(1)]. Judicial SHOCK orders are otherwise available only for drug and marijuana offenses.

Maximum Sentence for Misdemeanors Reduced to 364 Days
The budget also included amendments that reduce the maximum sentence for class A and unclassified misdemeanors to 364 days ( L 2019, ch 55, Part OO [pp. 50-52], with amendments in ch 59, Part MMM [p. 152]). As noted in the Immigrant Defense Project’s Legal Alert on the new law and its impact on old and new convictions, “[t]his law ensures that many immigrant New Yorkers will no longer be subject to extraordinarily harsh and disproportionate consequences for misdemeanor convictions under federal immigration law.”
New 30.30 Manual Includes Table of Contents
The February 2019 edition of the Criminal Procedure Law Section 30.30(1) Manual by Drew R. DuBrin is available here. Like earlier editions, the manual provides a comprehensive breakdown of New York's speedy trial statute. A Table of Contents for the newest edition adds to its utility. Once again, NYSDA thanks DuBrin, Special Assistant Public Defender in the Appeals Section of the Monroe County Public Defender's Office, for sharing this valuable resource. As noted above, the State Budget included speedy trial reforms that will take effect on Jan. 1, 2020.

State Loan Forgiveness Application Available
The application for the state’s District Attorney and Indigent Legal Services Attorney Loan Forgiveness Program (Education Law § 679-e) is now available on the NYS Higher Education Services Corporation (HESC) website. While no time limit is posted on the HESC website, when we contacted HESC, we were told that the application deadline is May 8, 2019. Attorneys who received a state loan forgiveness award last year should receive a payment application and verification directly from HESC. If you have questions or need more information about the state loan forgiveness program, please contact HESC at 1-888-697-4372 or

NYSDA’s information sheet about this program and other loan forgiveness and loan repayment assistance programs is available here. Please share this information with other attorneys who may be eligible for these programs.

Federal Court Finds Gravity Knife Law Unconstitutional as Applied
Whether a folding knife violates Penal Law 265.00(5) has long depended on whether the knife opens with a flick of the wrist—or, sometimes, repeated flicks of the wrist. A void-for-vagueness challenge to the statute asserting that the test is an improperly subjective, variable standard was rejected in 2010. But the door was left open for an "as-applied" challenge; knife-owner Joseph Cracco, fearing repeated prosecution, walked through that opening seeking a declaratory judgment. On Mar. 27, 2019, Federal District Court Judge Paul Crotty granted Cracco's motion for summary judgment while denying that of prosecutor Cy Vance. The court observed that the combination "of a statute that does not specify how Cracco can identify a gravity knife and a practice of prosecuting possession of gravity knives in an unclear and inconsistent manner provides police and prosecutors 'virtually unlimited' or 'unfettered' discretion," which makes the statute unconstitutionally vague under the circumstances presented.

Martin LaFalce, a staff attorney at The Legal Aid Society (LAS), prepared a practice advisory on Cracco v Vance. This helpful resource includes links to videos of wrists being flicked and descriptions of the original target of the statute. On behalf of lawyers, and their clients who use folding knives in a variety of jobs and other legitimate situations at the (often unwitting) risk of prosecution, NYSDA thanks LaFalce and LAS for sharing the advisory.

Association News

Life of Jay Coleman Celebrated
After John "Jay" Coleman, NYSDA's Client Coordinator and Chair of its Client Advisory Board, died on Mar. 27, 2019, his family and friends gathered to celebrate his life on March 30. Love and stories flowed freely. Those talking and those listening reflected Jay's ability to engage with people wherever he met them in nearly seven decades of life. Jay and his wife Alison had shared with others their journey during Jay's final months, as shown by the early January Times Union column by Paul Grondahl. As noted on NYSDA's Accomplishments webpage, Jay received a national Client Contribution Award in 2015. NYSDA offers condolences to the many others who, like his colleagues here, will long miss and remember him.