Defenders Fighting AND Winning for their COVID-19-Threatened Clients
As the number of people in jails and prisons with confirmed diagnoses of COVID-19 increases, and lawyers across the state continue to fight for release of vulnerable clients, NYSDA recognizes and celebrates that there have been successful efforts. Good news lurks among the mass of news items about the novel coronavirus’ spread. And NYSDA has heard directly from some lawyers about their wins, accompanied by their successful pleadings. We hope to hear more such good news. While we can’t report on every instance, we laud everyone whose dedication (and, admittedly, good luck as to the decision maker involved) led to one or more clients’ decarceration. And we’d like to hear from you!

Congratulations go out to:

·          The Legal Aid Society of Nassau County, whose Parole Attorney David Rosenfield secured the release (without prejudice) of two people held at the jail because the State was not accepting new enrollees in the “voluntary Willard” program to which each had agreed when pleading guilty in early March to parole violations—the court based release “on the lack of specificity in determining when Willard will begin to accept new enrollees”;
·          Karin Marris, Chuck Keller, and Jason Denny, lauded by the Onondaga County Assigned Counsel Plan (OCACP) in its weekly ACP Defender newsletter for getting their clients released from pre-trial incarceration—they started with a bail review, as OCACP noted while reminding its panel attorneys of information they can access through an OCACP portal regarding procedures and arguments;
·          Former NYSDA Staff Attorney and current Staff Attorney at The Legal Aid Society’s Bronx Criminal Defense Practice, Yasmin Davis, whose writ filing was COVID-19-specific and included data and charts about the NYC jail population found at ;
·          Institutional defenders who have secured releases with “mass writs,” including those noted in the last edition of News Picks; and
·          all others who have successfully advocated for release.

We also recognize how difficult it has been to achieve success at this time. We thank all defenders who are working hard to represent clients in criminal, family court, parole, and other proceedings under incredibly challenging circumstances.

NYSDA also lauds the defenders across the state and nation who are speaking out about the COVID-19 crisis. See, e.g., The Justice Collaborative’s “ When Every Sentence is a Possible Death Sentence: Public Defenders Speak from the Front Lines about COVID-19 .” Also see the Daily News op-ed on April 15 by defenders from NYC and Long Island urging the Governor to release many more people from the state’s prisons.

Restructured Coronavirus Pages to Assist Defenders with Questions and Issues
We encourage defenders to check out our newly redesigned COVID-19 web resource, prominently posted on the NYSDA  homepage . It is a comprehensive  resource for defenders on COVID-19 . Within this resource are newly reorganized pages to assist defenders with their research and practice including:  Practice Related Materials: Motions, Writs, Orders Defender Resources Efforts to Seek Release Family Court Resources Guidance, Updates and Resources ; and  Websites to Check Regularly . We have been getting reports about defenders having technical difficulties with joining virtual court proceedings. The  Virtual Court Resources  page includes guidance from the NYS Office of Court Administration (dated March 25, 2020), entitled  SfB Videoconferencing for Virtual Courts . This document provides information about accessing Skype for Business, the video conferencing program that is being utilized by the NYS court system to facilitate electronic court appearances.

Expanded Operations to “Nonessential” Matters Took Effect April 13
On Apr. 8, 2020, Chief Administrative Judge Lawrence K. Marks issued Administrative Order  AO/85/20 , providing for the expansion of virtual court operations and remote access to additional, nonessential court matters, effective Monday, April 13. The order provides:

In pending nonessential matters, courts will
(1) review case inventories and schedule telephonic and audiovisual conferences with attorneys and others where such conferences will facilitate resolution of disputed issues or the case as a whole. Audiovisual conferences will be handled exclusively through Skype for Business technology. Conferences may also be scheduled by the court at the request of parties;
(2) address outstanding, fully submitted motions; and
(3) be available during normal business hours to address ad hoc oral applications by telephone or Skype.

The goal of this expansion is to allow judges to advance the resolution of pending matters wherever practicable. The restraints and limitations upon court activity set forth below will continue.

Important :   The existing prohibition on the filing of new, nonessential matters, or filing of papers by parties in pending nonessential matters, will continue.  

The order also states that the court system anticipates further expansion of virtual operations in the weeks to come.

Defenders May Now Be Creative in their Advocacy for Cases that Can Be Resolved
In light of the announcement that courts are hearing matters beyond essential matters, we have gotten reports that some judges are asking for cooperation to resolve cases between district attorneys and defense attorneys. Defenders are encouraged to review their own case files proactively to look for cases that can be easily resolved, including by adjournment in contemplation of dismissal, etc. We hope this is a positive step forward in resolving cases that have not been able to proceed given various Executive and Administrative orders, and we welcome updates from attorneys on how things progress so that NYSDA can best support attorneys across the state.  

Pandemic Does Not Override the Constitutional and Statutory Right to a Speedy FCA 1028 Hearing
A mother represented by Brooklyn Defender Services (BDS) was successful in challenging a Brooklyn judge’s decision to adjourn her application for a “1028 hearing” until December 2020, after her children, ages 6 and 13, were removed from her custody pursuant to an emergency removal application brought by the Administration for Children Services (ACS). The Family Court Judge cited the current public health emergency and an Executive Order limiting court functions as “good cause” for the seven month adjourn date. Unpersuaded, the Second Department granted the mother’s request for a Temporary Restraining Order (TRO), and directed the Family Court to hold an immediate virtual hearing under Family Court Act (FCA) 1028 to determine if it was safe to return the children to their mother’s care. In support of the TRO application, BDS argued that the children’s separation from their mother was causing them irreparable harm, and that it was a violation of both the U.S. Constitution and FCA 1028 for the court not to conduct an immediate hearing on whether any imminent risk existed to justify removal of the children. Additionally, BDS argued that “the balance of equities heavily favors the remedy sought here because the certain harm to the children of continued separation from their mother without due process of law outweighs the administrative burden on ACS and the Family Court of holding the hearing telephonically or via videoconference within a reasonable period of time.” The full argument section of BDS’s brief that accompanied the TRO request is available at this link .

NYSDA Comments on Proposed Host Family Regulations, Comment Period Extended
As noted in the Mar. 26, 2020 edition of News Picks, the Office of Children and Family Services (OCFS) has proposed regulations governing Host Family Homes, which, if adopted, would amend 18 NYCRR 444.1 (and add new sections 444.2-442.15), establishing standards for the approval and administration of host families, giving parents the option of placing their children with an approved host family pursuant to a voluntary placement agreement for up to 12 months and in some cases longer. At the end of March, NYSDA submitted comments on the proposed regulations. NYSDA has confirmed with OCFS that due to the current pandemic, the comment period for the proposed regulations has been extended until May 27, 2020 . Comments on this proposed rule change can be submitted to OCFS by email at .

Addressing Mental Health Needs During the Pandemic and Beyond
The increased challenges that mental health issues present for clients, defense teams, and others during systemic crises like the COVID-19 outbreak may also have continued ramifications in the aftermath. Here are some existing resources and support for coping in the moment, and suggestions for what will be needed in the months and years ahead,

A major current challenge is a deepened lack of mental health services, including for people newly released from facilities. The Office of Mental Health (OMH) issued a  guidance  on March 20 disapproving of mental health service providers limiting or closing new intakes or admissions, noting that: “Although we understand that agencies are very quickly shifting operations to meet the needs of current clients, the mental health system must continue to support individuals stepping down from more intensive settings and levels of care, such as inpatient psychiatric hospitals, jails/prisons and CPEPs.” The guidance includes caveats (“for example, [when] accepting an admission would force exposure to individuals already in housing who are positive for COVID-19”).

Attorneys with clients who are experiencing interruptions in or refusals of needed care are asked to contact the Backup Center, which is in contact with Disability Rights New York as they monitor compliance with the guidance. This guidance and others can be found on the OMH  Guidance Documents webpage , which includes COVID-19 guidance documents and is among the sites listed on NYSDA’s  Websites to Check Regularly  coronavirus page.

An article in JAMA Psychiatry on Apr. 3, 2020, warns that people with serious mental illness (SMI) experience a high rate of factors that put them at risk during the outbreak, e.g., homelessness and residential instability, smoking, and small social networks. And for those with SMI, worry about COVID-19 may “both exacerbate and be exacerbated by existing anxiety and depressive symptoms.” Physical distancing may “increase the risk of loneliness and isolation,” and people with SMI who contract the virus “may face dual stigma associated with their infections and their mental health conditions.” Public policies “developed to mitigate the health and economic outcomes of the COVID-19 outbreak” need to include plans to minimize adverse outcomes for people with SMI, the article notes. An adjunct public health professor and advisor to OMH has said in critiquing the article that while it seems to say the mental health workforce can expand to meet the crisis, “’what we learned is that the mental health system in this country is vastly undersupplied,’” and called on the federal government to mobilize a crisis counseling initiative.

Behavioral health challenges take many forms. Autism can bring people into contact with the criminal justice system and present difficulties for parents in family matters; it can also be found among attorneys working in these fields and their families. A survey of families dealing with autism revealed that some have found innovative and successful strategies for navigating therapies, education, and daily life during the outbreak, while others are struggling. Another survey has been sent to adults with autism but results are not yet available.

The availability of mental health services has been eroded by the pandemic, including at Rikers Island, as described in a story in The City entitled “NYC Seeks to Reduce Jail Mental Health Help Just as Riker[s] Inmate Harms Self.”

DVSJA Sentencing: A New Challenge for Judges
On Apr. 15, 2020, the New York Law Journal published an article by Alan Rosenthal: “In May, 2019, the New York Legislature enacted the Domestic Violence Survivors Justice Act (DVSJA) which authorizes alternative sentences for defendants who were victims of domestic abuse. This article takes a look at the judicial knowledge and analysis that must now be brought to bear in the course of this new sentencing determination.”

Student Loan Repayment and Forgiveness Updates
The NYS Higher Education Services Corporation (HESC) has opened the application period for its Attorney Loan Forgiveness Program. Interested Indigent Legal Services attorneys should visit the HESC  website  for the application and more information about the program. The HESC website does not indicate the deadline for this year’s application. Questions about the program should be directed to the HESC Scholarship Unit at or 888-697-4372.

The federal Coronavirus Aid, Relief, and Economic Security (CARES) Act passed at the end of March includes provisions to help with student loan repayment. More information is available from the U.S. Department of Education’s Office of Federal Student Aid at . Additional information is available at and .

New York SHIELD Act Data Security Protection Requirements Now in Effect
Last year, New York enacted the Stop Hacks and Improve Electronic Data Security (SHIELD) Act. ( L 2019, ch 117 ). The law has two key parts: 1) amendments to existing data breach notification requirements (effective Oct. 23, 2019); and 2) data security protection requirements that took effect on Mar. 21, 2020.

Under the SHIELD Act, the data breach notification requirements and the new data security protection requirements apply to “[a]ny person or business which owns or licenses computerized data which includes private information” of a New York resident. General Business Law (GBL) 899-aa(2); 899-bb(2)(a). Small businesses, as defined by GBL 899-bb(1)(c), are in compliance if their “security program contains reasonable administrative, technical and physical safeguards that are appropriate for the size and complexity of the small business, the nature and scope of the small business’s activities, and the sensitivity of the personal information the small business collects from or about consumers.” GBL 899-bb(2)(c).

Personal information is defined as “any information concerning a natural person which, because of name, number, personal mark, or other identifier, can be used to identify such natural person.” GBL 899-aa(1)(a). Private information includes: a) personal information combined with a specified data element, such as an individual’s Social Security number, driver’s license number or non-driver identification number, account number, credit or debit card number, if such number could be used to access a financial account without additional identifying information, security code, or password, or biometric information; or b) a username or email address in combination with a password or security question and answer that would permit access to an online account.

More information on the SHIELD Act is available from the Lawyers Alliance for New York , the New York State Bar Association , the National Law Review , and law firms, such as Pillsbury Winthrop Shaw Pittman LLP and White & Case . As noted in a Mar. 31, 2020 article , in light of the significant increase in remote work as a result of COVID-19, at least one law firm “has formally asked the New York Attorney General’s Office for an enforcement extension on the SHIELD Act, but exactly how regulators will choose to proceed is uncertain.”

Association News

Wells College Alumna Stephanie Batcheller to Receive Award
Stephanie Batcheller is a recipient of the 2020 Wells College Alumnae and Alumni Association (WCA) Award. As described in the WCA newsletter, Stephanie’s distinguished career includes her work as the first female chief public defender in Georgia’s Middle Judicial District, where her first argument was on behalf of a client facing the death penalty; an assistant federal public defender in Maryland; an assistant public defender in Monroe County, NY; and over two decades at NYSDA, where her current title is Senior Staff Attorney. “Renowned for her expertise in the field of trauma-informed advocacy,” as the announcement notes, Stephanie brings her breadth and depth of experience and knowledge to NYSDA’s training program and daily work. Charlie O’Brien, who strongly supported Stephanie’s designation as a WCA Award recipient, said she was an “unsung hero” to others in the public defense system. He would have been pleased to hear about the WCA recognition.

Receiving a WCA award contemporaneously with Stephanie will be a college mate, Gwen Wilkinson, former District Attorney of Tompkins County. They will join the company of Ann Taber Pfau, former Chief Administrative Judge of the State of New York, who received the award in 2011. Congratulations, Stephanie!