NYSDA and Other Advocates Keep Pressing Justice Issues During Budget Delay
Reasons for the widely-reported delay in finalizing a state budget include failure of the Governor and Legislature to agree on whether to roll back bail reform (and if so, how). See for example coverage here (wkbw.com, Buffalo) and here (SpectrumLocalNews.com [Central NY]); and see also here (NYSfocus.com). Discovery reform rollbacks are being considered as well. NYSDA issued a statement urging lawmakers to resist changes to bail and other reforms. What New York needs is robust funding for public defense, including an increase in assigned counsel fees, discovery funding, and family defense funding, not the erosion or possible elimination of the principles underlying bail and discovery reform.
Governor Announces Nominees for Chief Judge and Associate Judge; Senate Hearings Today and Tomorrow
While budget negotiations drag on, Governor Hochul has acted quickly on the Commission on Judicial Nomination’s list of candidates for the Chief Judge position. As noted in the last edition of News Picks, the Commission sent a list of seven nominees to the Governor on March 24th. On April 10th, the Governor announced her nomination Associate Judge Rowan D. Wilson as the next Chief Judge, as well as her intention to nominate Caitlin J. Halligan to fill Judge Wilson’s Associate Judge seat.
A few days later, the Senate Judiciary Committee announced that it would consider Judge Wilson’s nomination at a hearing on April 17th, and would have a hearing on Caitlin Halligan’s nomination the following day. Both hearings will be livestreamed on the Senate’s website.
Judge Wilson has served as an Associate Justice for over five years and, if confirmed, would be New York State’s first Black Chief Judge. Caitlin Halligan, a partner at a New York City law firm, previously served as the New York State Solicitor General and was General Counsel to the New York County District Attorney. As noted in the Governor’s press release, Judge Wilson is expected to appoint Judge Joseph Zayas as Chief Administrative Judge.
On the same day as the nominations were announced, the Governor signed a bill (Chapter 123) to amend the Judiciary Law to authorize the Governor to take such action in cases where an appointment of a Chief Judge causes an Associate Judge vacancy. The Governor’s use of the same nomination list for both appointments has been questioned by some legal and other groups, noting that it “court harm diversity in the state’s top court, generally limit opportunities for judges and attorneys to advance to the court and could potentially violate the state’s constitution.”
Breaking News: The Times Union published an article on April 17th titled "Potential law suit could pause second Court of Appeals nomination."
Temporary Extreme Risk Protection Order Deemed Unconstitutional in Orange County
Acting Orange County Supreme Court Justice Craig Brown issued a decision that the law authorizing issuance of a Temporary Extreme Risk Protection Order (TERPO), CPLR 6340--6347, is unconstitutional as there is currently no requirement under the law “of any input from a medical or mental health expert,” leaving the court to determine whether respondents are “‘likely to engage in conduct that would result in serious harm to himself, herself, or others.’” Orange County District Attorney David Hoovler recognized that this decision was “well reasoned and well thought out,” calling for a statutory change. This decision was featured on Mid Hudson News.com.
Previously NYSDA covered ERPO Case Law Updates in the January 24, 2023, issue of News Picks, wherein Monroe County deemed the statutes unconstitutional while Westchester County upheld the laws as constitutional.
DVSJA Act Statewide Task Force Releases New Expert Guide
The Statewide Domestic Violence Survivors Justice Act (DVSJA) Task Force has released a new guide for attorneys working with experts in Penal Law 60.12 sentencing and CPL 440.47 resentencing matters: “Experts and the Domestic Violence Survivors Justice Act: A Guidebook for Defense Attorneys.” The new publication offers guidance as to when to use an expert in DVSJA cases, how to select the appropriate expert, and the roles an expert can play in assisting the defense. The guide is available on NYSDA’s DVSJA Resources webpage.
Attorneys seeking assistance or resources are encouraged to reach out to NYSDA’s DVSJA Attorney Support Project by contacting Senior Staff Attorney Stephanie Batcheller at SJBatcheller@nysda.org or (518) 465-3524 x 41.
Raising Race Under the 4th Amendment
While “the Fourth Amendment is primarily concerned with protecting individual privacy against arbitrary intrusion by the government,” New York courts had seldom, until recently, “utilized race as a factor when determining whether law enforcement officers have violated an individual’s rights under” that constitutional provision. This is the topic of an article by Barry Kamins in the New York Law Journal. It examines “how courts are considering race as a factor in a Fourth Amendment analysis, and how defendants are beginning to raise this issue in suppression motions.” NYSDA welcomes this focus on efforts to identify and challenge racism in the criminal legal system.
One case discussed is People v Jones (210 AD3d 150 [3d Dept 10/20/2022]). As Kamins points out, Jones “noted that limiting a remedy to a civil claim under the equal protection clause would render a defendant’s constitutional rights meaningless”; to protect those rights, the exclusionary rule must apply when someone is detained because of their race. Jones had been highlighted in the Oct. 31, 2022, edition of News Picks when it came out; it was also mentioned in the March 8th edition in an item on data about extreme racial bias in New York Police Department (NYPD) traffic stops. Kamins points out that the NYPD has, due to a class action lawsuit, “agreed to a major reform of its street encounter procedures” meant to make clear that “‘the authority to detain a suspect ends when the tasks tied to the reasons for the stop are completed or reasonably should have been completed.’”
Kamins’ article also describes a case now pending in the Court of Appeals. While the legal theory at issue is “whether police encounters with bicyclists are to be evaluated under the DeBour analysis appliable to pedestrians or” under “automobile-stop-jurisprudence,” the issue of racial bias will be a subtext, Kamins says. The case is People v Rodriguez (194 AD3d 968 [5/19/2021], lv granted [37 NY3d 995], rearg granted [39 NY3d 959 (2022)]. Ordering reargument, Kamins speculates, followed “difficulty in achieving a consensus” on the court; reargument will, presumably, follow selection of a new Chief Judge.
Those interested in this subject are encouraged to attend NYSDA’s April 27th CLE, New Developments in Challenging Police Pretext Stops.” Details and registration information are available here.
Niagara County Forensic Lab Issued Several Violations That May Affect Accreditation
The State’s Commission on Forensic Science outlined eight violations in a Mar. 16, 2023, notice issued to the Niagara County Sheriff’s Office Forensic Laboratory, as reported by the Niagara Gazette. The lab had the opportunity to submit a written response and a special hearing has been scheduled for April 20th to address the lab’s accreditation status. The eight violations include:
1. Misrepresenting information to the Commission
2. Staff performing tasks without the proper documented authorization
3. Fabricating and backdating of training documentation
4. Delay in the recognition of reoccurring corrective actions
5. Accepting improperly packaged evidence
6. Conducting re-analysis of casework with no documentation
7. Utilizing pre-adjudicated evidence from cases as competency/proficiency test samples
8. Conduct unbecoming of a laboratory.
While under probation, the lab is permitted to conduct analytical work if it adheres to specific conditions and/or requirements, which have not been made public. Additional details supporting these allegations were not provided in the written notice, but the Commission sought a probationary period until the April 20th hearing and may be seeking more extensive sanctions such as suspension or revocation of the lab’s accreditation. Photos of the Notice of the alleged violations were broadcast by WGRZ-TV and are contained in this video.
The Commission on Forensic Science took this action at its March 10th meeting. As noted in the draft meeting minutes, it “voted to hold a special hearing per executive law 995-b and related regulations, specifically, 9 NYCRR section 6190.6, where the Commission is authorized to revoke, suspend, or otherwise limit the NYS accreditation of a forensic laboratory.” If you have any questions about meetings of the Commission on Forensic Science and its DNA Subcommittee, you may contact Staff Attorney Ashley Hart at ahart@nysda.org or (518) 898-8075.
Advocate Once Again Highlights the Horrors of the “Child Welfare System”
“I’d Rather Take a Beating Than Catch a CPS Case”: Survivors Face an Impossible Choice is the title of an article written by Jasmine Wali, MSW, Director of Policy & Advocacy at JMACForFamilies. The item published in the online publication The Nation goes right to the heart of the problem with the “child welfare system,” also known as the family regulation system because of the punitive and callous way it treats poor, Black, and brown families. Domestic violence victims are afraid to seek help from their healthcare providers, domestic violence agencies, or law enforcement for fear of a fate worse than having physical violence inflicted upon them. Fear of having their families ripped apart, and their children placed with strangers, resulting from a report being made to CPS by someone they trusted to help them get away from the violence.
According to Wali, “[a] number of studies have documented that survivors of intimate partner violence avoid seeking help and minimize what they share with social service providers, who could offer safety planning, legal support, therapy, and help finding what survivors most need: housing and childcare. But survivors are afraid—very reasonably—that any information will be used against them in a mandatory report and an investigation.” She continues that 1.8 percent of victims interviewed for one survey said that a mandated report greatly improved their situation.
The pervasive and inhuman way CPS treats poor, Black, and brown families goes far beyond the examples given in Wali’s article. Countless reports, investigations, and articles have highlighted the criminalization of people of color that has existed in this society for longer than any of us have been alive. Some articles can be found on NYSDA’s Family Defense Resource page.
This is not the only piece Wali has written about the evils of the “child welfare system.” Wali wrote an op-ed featured in the Boston Globe about a little girl she called Violet, who she met as a “fresh out of college” behavioral coach at a foster care facility. Violet was deemed a behavior problem but would have likely been just fine if she had not been ripped away from her family in the name of protecting her. Highlights from the article and a link to it can be found in the Nov.-Dec. 2022 edition of the REPORT. Wali and JMACForFamilies advocate for dismantling the current system, redefining “child welfare” to mean ending poverty and supporting families of color by investing more money into community-based programs that can strengthen the fabric of communities that are disproportionally impacted by the system. NYSDA also supports and advocates for this goal because children thrive when they are with their loving family and not with strangers. No child should be removed from their home because of their zip code, their parent’s checking account balance, or their skin color.
Neglect Finding Reversed Against Domestic Violence Victim
Yet another example of the disparate way domestic violence victims are treated by the “child welfare system” is Matter of Alachi I. (2023 NY Slip Op 01822 [4/6/2023]), where the Third Department reversed a neglect finding against a mother of three who left her abusive spouse and fled to a domestic violence shelter after receiving a particularly severe beating. The case out of Ostego County Family Court originated with shelter workers calling “the hotline” to help the overwhelmed mother. Instead, the result was the placement of these three children, who had already been traumatized by witnessing their father beating their mother, into foster care.
Based on the record, “[t]he mother acknowledged her need for support and was attempting to open a preventative services case .… She also requested respite care, ultimately placing all three children with [DSS] for a brief period so that she could attend to a custody matter in Georgia, where the abusive father had initiated proceedings. [DSS] commenced this neglect proceeding against her during that period and obtained emergency removal of the children.” With “help” like this, it is no wonder why domestic violence victims like the ones mentioned in the previous item by Jasmine Wali are afraid to ask DSS for help.
This case contains an excellent recitation of the law surrounding neglect proceedings and should be used as an educational tool by all family defenders. ‘“[A] party seeking to establish neglect must show, by a preponderance of the evidence, first, that a child’s physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired and[,] second, that the actual or threatened harm to the child is a consequence of the failure of the parent or caretaker to exercise a minimum degree of care in providing the child with proper supervision or guardianship’ [citations omitted].” “[I]mpairment cannot be said to be imminent if it is only hypothetical or possible, rather than near or impending [citations omitted].”
Additionally, the court noted its disappointment at the nearly three years it took for this appeal to be perfected, noting that the system failed this family. “Justice delayed is justice denied.”
Class Action Suit Filed Against DOCCS over HALT Solitary
A New York Civil Liberties Union (NYCLU) press release announced on April 5th that NYCLU and Prisoners’ Legal Services of New York (PLSNY) have filed a class action suit “against the Department of Corrections and Community Supervision (DOCCS) for illegally subjecting people to prolonged solitary confinement in violation of the Humane Alternatives to Long-Term Solitary Confinement Act (HALT), passed in 2021.” Information about the action, Fields v Annucci, can be found on an NYCLU webpage.
Failure to implement the spirit and letter of HALT, not only in DOCCS but also in jails, including Rikers Island, was reported in prior editions of News Picks including the October 17th and December 12th, 2022, editions. Continuing law enforcement pushback on HALT, with claims that it has increased violence in facilities, was also noted.
DOC Disfunction Continues
The New York City Correction Department’s Deputy Investigation Commissioner Manuel Hernandez resigned in early April over “decisions he made to close serious use-of-force cases without charging [DOC] officers or after filing reduced charges,” according to the Daily News.
The ongoing federal monitor of the city’s jails has found a “disturbing trend” of noncompliance with its recommendations, going as far as saying that the DOC’s “conclusions did not seem to be objective.” The situation had improved under Deputy Intelligence, Investigation and Trials Commissioner Sarena Townsend, but she was fired for refusing to close 2,000 officer use-of-force cases in only four months.
Townsend has been similarly outspoken on the intake procedures at Rikers, which have also been the subject of federal monitoring. Although the DOC was found to be in violation of a 2021 federal order to track how long incarcerated individuals were held in intake facilities, SDNY Judge Laura Taylor refused to hold the agency in contempt and implement more vigorous oversight, in part because of the amount of work the DOC needed to do. Townsend, in an interview with New York Focus, described the decision as “[t]hey’re such failures, we shouldn’t hold them in contempt.” Kayla Simpson of The Legal Aid Society’s Prisoners’ Rights Project summarized the situation this way: “Fifteen months into the Adams administration, the city jails continue to operate at a dangerous level of dysfunction and incompetence ….”
And the SCOC?
The New York State Commission of Correction (SCOC), “an Executive Department correctional oversight and technical services agency,” according to its 2021 Annual Report, delivers its services to “to all state and county correctional facilities, police department detention facilities, and facilities operated by the New York City Department of Correction.” [Emphasis added.] But SCOC oversight has not prevented or cured the many problems at Rikers Island as is obvious from the above; any oversight that may have occurred has rarely been publicly noted. (A New York Times article on May 5, 2017, reported that “[t]he jail complex on Rikers Island has failed to comply with minimum safety standards and has become so dangerous, [according to the SCOC], that it can no longer be permitted to accept inmate transfers from outside New York City.”) SCOC oversight has been used by the NYC Department of Correction (DOC) to limit access to some information by the DOC’s local oversight body, the Board of Correction (BOC). Commentary in the February 10th City and State reported that DOC Commissioner Louis Molina has claimed “records about inmate death under investigation by SCOC are exempt from disclosure” under the Freedom of Information Law (FOIL).
The SCOC’s work outside NYC is scarcely more noticeable, with the possible exception of death investigations. An April 3rd article on Post-Journal.com (Jamestown) noted an SCOC report on the death of a person in the Chautauqua County Jail. The Nov. 15, 2022, report found shortcomings in the mental health and psychiatric treatment afforded to the person who died in September 2021, the Post-Journal said. The report called on the County Legislature to review the findings and “conduct an inquiry into the fitness of the currently designated provider.” A long March 31st article in the New Republic entitled “Why Do People Keep Dying in Erie County’s Jails?” mentioned the SCOC only in connection with reports on the deaths of two people.
The primary role of the SCOC in some eyes is to provide “variances” for evading various regulations (like the correspondence variance noted above). The website of the Orleans County Jail notes that the “facility is approved to house 82 inmates and quite often exceeds that capacity with variances issued by the NYS Commission of Correction.” Conversely, the SCOC is said to allow staffing of jails to continue at rates that do not reflect actual jail population. The Pipe Dream (Binghamton University student paper) reported that 27 new correctional officers were hired in Broome County in response to a “staffing crisis”; the new hires would place the jail in compliance with state regulations, the March 30th article said. But a post on the JustTalk blog the same day noted that a drop in jail population should lead to “‘a reduction in facility capacity and commensurate staffing’” (quote attributed to the Ulster County Comptroller). Hidden behind the different evaluations of appropriate staffing is an SCOC regulation that includes in the factors to be considered for “the minimum facility staffing requirement for each local correctional facility” the following: “(2) the maximum prisoner capacity of such facility established pursuant to Part 7040 of this Subtitle ….” [emphasis added].
Defenders who receive inquiries from clients about poor jail conditions may know that the SCOC also receives complaints from people in jail. (As of 4/5/2023, the webpage that includes grievance forms entitles them “inmate” forms, although New York State is supposed to be moving to replace “inmate” with less pejorative terms, as noted in the June-Oct. 2022 issue of the REPORT.) The 2021 Annual Report shows that the SCOC “received and processed 4,888 grievance appeals from county jails,” accepting two and accepting “in part” 61 more. With 69 being returned, that left 3,108 that were denied and 1,648 more that were “denied with comment.”
New Veterans Court Opens in Putnam County
On March 21st, a Veterans Treatment Court (VTC) opened in the Putnam Supreme and County Courthouse. According to an OCA press release, the court will be open to “justice-involved veterans charged with felonies who may be suffering from addiction, mental health issues and other combat-related disorders.” Referrals can be made by defense counsel, as well as town and village magistrates, prosecutors, clinicians, and the probation department. The court will hear misdemeanor and felony cases, and participants “may have their charges reduced or dismissed upon successful completion of treatment and other court requirements.” The court will be presided over by Judge Joseph Spofford, who also sits in Putnam’s Drug Treatment Court. More coverage from Putnam Daily Voice and Mid Hudson News.
Defense attorneys who are representing a veteran or member of the military are encouraged to contact NYSDA’s Veterans Defense Program at (585) 219-4862 or via the VDP contact form.
ABA Releases Plea Bargaining Report
In March, the American Bar Association Criminal Justice Section’s Plea Bargain Task Force released a report on the state of negotiated resolutions throughout the country’s criminal legal system. Unsurprisingly, the report finds that 98% of convictions nationwide come from guilty pleas. The benefits are both practical (efficiency, certainty, and cost savings) and ethical (“a means to mitigate the excessive harshness of the modern American criminal system.”) But there are also clear negatives – police and government misconduct go unchecked and undiscovered because so few cases get to hearings or any stage of vigorous litigation, and pleas are often coerced because of a fear of a trial tax or mandatory sentence.
The Task Force recommended fourteen principles to guide plea bargains, centered around the fundamental right to a trial. Those principles include a vibrant docket of trials and pre- and post-trial litigation, right to qualified counsel, discovery before being required to accept or reject a plea, data collection on plea offers, and the elimination of coercive incentives to plea, pretrial detention to induce pleas, certain waivers, trial taxes, and upcharging.
Association News
January-March 2023 Backup Center REPORT Available Online
The first issue for 2023 of NYSDA’s newsletter, the Public Defense Backup Center REPORT, is on the NYSDA website. NYSDA members will receive a hard copy of the issue when printing and mailing are completed. If you have any questions, please contact the Backup Center at info@nysda.org or 518-465-3524.
Upcoming Training Programs
Thursday, April 20, 2023, 3:00 – 4:40 pm: Incapacitated to Stand Trial and Stuck in Jail – Now What? with Julie Keegan, Director, Protection & Advocacy for Individuals with IDD/ADD (PADD) Program, Disability Rights of New York (DRNY); Ben Taylor, Senior Staff Attorney, PADD Program; and Sheila Shea, Director, Mental Hygiene Legal Service, Appellate Division, Third Department. This program will review the fundamentals of CPL article 730 practice and strategies for helping clients trapped in incarcerative settings. Details and registration information are available here.
Friday, April 21, 2023, 1:00 – 2:30 pm: Technology Training Series: Part Two: Metadata: How to View and Interpret Hidden Information with Brian Cummings, Staff Attorney, Discovery and Forensic Support Unit, New York State Defenders Association. This CLE shows attorneys how to uncover, preserve, and use metadata in legal arguments. The presentation will focus on common digital discovery files (photos, videos, etc.) but will also touch on complicated forms of metadata created by mobile phones, networks, vehicles, and more. The CLE covers technical details of a complex subject and assumes a basic understanding of digital files. Details and registration information are available here.
Thursday, April 27, 2023, 1:15 – 2:45 pm: New Developments in Challenging Police Pretext Stops with Yung-Mi Lee, Legal Director, Brooklyn Defender Services, and Jill Paperno, Senior Civil Rights Litigator, Civil Rights Practice Group, Empire Justice Center. Details and registration information are available here.
Thursday May 4, 2023, 1:00 – 2:30 pm: Technology Training Series: Part Three: Computer Hardware for Attorneys: Choosing the Right Tools for the Job with Brian Cummings, Staff Attorney, Discovery and Forensic Support Unit, New York State Defenders Association. This CLE covers the technical specifications an attorney should consider when choosing a computer or other tools for working with digital evidence. Investing in the right technology can save time, money, and headaches down the road. The material is geared toward typical computer users but will also touch on newer technology and specific computer components that will likely be unfamiliar to some viewers. Details and registration information are available here.
Friday, May 12, 2023, 2:30 – 4:30 pm: Research-informed Domestic Violence Defense: An Overview with Charles Dresow, Attorney at Law, Ragghianti Freitas LLP, and John Hamel, Ph.D., LCSW. This program will present evidence-based and viable strategic approaches to representing individuals charged with domestic violence offenses. Details and registration information are available here.
Wednesday, June 7, 2023, 1:00 – 2:00 pm: To Participate or Not to Participate: Ethical Considerations in Representing a Client Absent at Trial with Adele Fine, Family Court Bureau Chief, Monroe County Public Defender’s Office. This program will discuss the ethical considerations involved in strategizing how to proceed with a case when the client is absent from the trial or hearing. Details and registration information coming soon.
Sunday, June 11 – Friday June 16, 2023: NYSDA Defender Institute Basic Trial Skills Program. The annual Basic Trial Skills Program will return in-residence to Skidmore College in Saratoga Springs. Anyone interested in applying for the program should contact NYSDA at training@nysda.org.
Monday July 30 - Tuesday August 1, 2023: 56th Annual Meeting and Conference. Registration for the Annual Meeting and Conference is now open. Program highlights and registration information are available here. The event will be held at the Saratoga Hilton in downtown Saratoga Springs, with an online option for the training sessions and membership meeting. We are proud to expand our programming by offering training and networking opportunities for criminal defense and family defense attorneys and members of the defense team.
Hotel reservations may be made at https://book.passkey.com/go/NYSDefendersAssn23. The conference rate is $201 for a standard room. The deadline for hotel reservations is June 26th. We look forward to seeing you in Saratoga this summer!
Save the Date: Thursday, September 28, 2023, 12:30 – 2:30 pm: Representing Disabled Parents: Strategies and Solutions for Preserving Their Rights with Robyn M. Powell, Ph.D., JD, Associate Professor, University of Oklahoma College of Law. Details and registration information coming soon.
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