Budget Delays Continue; Discovery and Bail Reform Under Attack

The New York State budget has still not been finalized. As noted in the last issue of News Picks, discovery and bail reform have been under attack. NYSDA has been working with colleagues from around the state to urge lawmakers to resist rollbacks. Our most recent effort, as reported in City & State New York, is a sign on letter that was sent to legislators yesterday.

Calling All Defenders, Your Individual Support is Needed!

Now is a critical moment in the budget negotiations. Defenders who oppose rollbacks to bail and discovery are asked to join a sign-on letter today.

NY Lesser Included Offenses Updated Reference Guide Now Available

NYSDA has updated its guide to New York Lesser Included Offenses. This chart sets out potential lesser included offenses for various Penal Law and Vehicle and Traffic Law offenses; it also includes excerpts from several key New York Court of Appeals decisions and a list of relevant Criminal Procedure Law sections. Older versions of the guide, such as those published in 2021 and 2017 issues of the REPORT, should be replaced with the new version.

Issues to Develop at Trial Available from CAL

The Center for Appellate Litigation (CAL) has shared the April edition, Bruen Series – Justification & Weapon Possession, of the publication Issues to Develop at Trial (IDT). It sets out an argument that under the Second Amendment a client’s self-defense needs render their possession of a weapon lawful. While People v Almodovar, 62 NY2d 126 (1984) disallowed a justification jury instruction on a weapons possession charge, that arguably changed when the U.S. Supreme Court issued New York State Rifle & Pistol Ass’n, Inc. v Bruen (142 SCt 2111 [2022]). CAL proposes that a justification jury charge be sought not only where courts have granted a justification charge as to use of a gun, but even where only weapon possession counts have been lodged. As noted in the March 28th edition of News Picks, CAL has provided other helpful information regarding Bruen, like the pending cases noted in the March 15th Court of Appeals Update.

The January IDT issue was the latest in a Racial Justice Series, discussing “a terrific decision out of Washington State (State v. Sum) expressly holding, under Washington’s State Constitution, that a person’s race and ethnicity are relevant circumstances that a suppression court must consider in determining whether a person has been seized.” As always, NYSDA thanks CAL for sharing its resources with the public defense community.

New Report Reviewing New York’s Domestic Violence Survivors Justice Act (DVSJA)

The Sentencing Project and Survivors Justice Project have published a report, “Sentencing Reform for Criminalized Survivors: Learning from New York’s Domestic Violence Survivors Justice Act.” As stated in the Introduction, “In 2019, New York State passed a landmark bill to address this problem: the Domestic Violence Survivors Justice Act (DVSJA), a law that changed the sentencing framework for survivors of domestic violence convicted of offenses connected to their victimization. This guide is intended to assist advocates and policymakers across the country in their efforts to enact sentencing reform for criminalized survivors by learning from the successes and challenges of New York’s DVSJA.” Although published as a policy and data-informed report, from a practice standpoint, the guide offers attorneys insight into the goals of the DVSJA that may help in crafting arguments for courts and prosecutors to help them understand why and how the legislation applies in discrete circumstances.

Attorneys are reminded that information and resources are available on NYSDA’s DVSJA Resources webpage; anyone seeking particular 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.

Conditions on Future Parental Access Reversible Error

In two decisions issued on the same day, the Second Department reversed lower courts that improperly put conditions on future parental access. In Matter of Baez-Delgadillo v Moya (2023 NY Slip Op 01994 [4/19/2023]), the Kings County Supreme Court suspended the father’s parental access and gave the mother sole custody, without a hearing, based on the father’s failure to comply with a prior order to attend alcohol treatment and therapy. This was a reversible error. According to the Second Department, “the court improperly conditioned the father’s future parental access or reapplication for parental access rights upon his compliance with treatment.” Additionally, “the Supreme Court erred in making a final custody determination without a hearing and without inquiring into the best interests of the parties’ child.”

In Matter of Coley v Steiz (2023 NY Slip Op 01995 [4/19/2023]), the Dutchess County Family Court conditioned the filing of the father’s future petitions for in-person parent time on his completion of a parenting class. The Second Department held: ‘“A court deciding a custody proceeding may direct a party to submit to counseling or treatment as a component of a [parental access] or custody order’ [citations omitted]. However, a court may not direct that a parent undergo counseling or treatment as a condition of future parental access or reapplication for parental access rights [citation omitted]. Here, the Family Court erred in conditioning the filing of any future parental access petitions by the father upon his completion of a parenting class, and we modify the order entered January 18, 2022, so as to eliminate that condition.”

Westchester DWI Warnings Could Have Pressured Spanish-Speaking Drivers

A detailed story co-published by ProPublica.org and El Diario says that Westchester County prosecutors knew “for years that drunk driving convictions of Spanish-speaking motorists may have been tainted by faulty evidence” but did not investigate until defense lawyers reached out to the wrongful convictions unit. Mistranslated instructions as to what refusing a blood alcohol test would mean, in use by State Police (allegedly only in Westchester) from at least 2014 to 2018, “could, at a minimum, confuse or mislead drivers and may have pressured some into a decision that resulted in severe consequences,” according to experts. Prosecutors were alerted to the problem in 2018, 2019, and 2021, the article says. The conviction review unit received a list of 263 DWI matters in February last year that are still being evaluated.

Lawyers representing clients whose English fluency is limited may face a number of challenges. These include access to appropriate translation services for attorney-client communications, determining the effect and results of police communications with the client, and the possibility that cultural differences as well as language limitations may be relevant to understanding a client’s legal situation. As noted in training materials from a February 2nd CLE training, “Language and Culture Cannot Be Separated … Culture is inherently a part of language.”

Niagara County Forensic Lab Under Review After Hearing

In our last issue of News Picks, we reported that the State’s Commission on Forensic Science cited eight violations issued to the Niagara County Sheriff’s Office Forensic Laboratory. This lab may face sanctions and their accreditation may be affected. Civil litigation alleging employee harassment by the former lab director has commenced and remains ongoing. Following a hearing conducted entirely in executive session on April 20th, the Commission moved to review the issues more closely before ruling on the action. As we learned from a Niagara Gazette report on April 21st, the Commission will form a committee to review the evidence and issue a report prior to the next meeting on June 9th. It remains unclear at this juncture whether or to what extent the violations had or have impacted casework, but we will provide information as it becomes public. 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.

Town Court Clerks Seeks Leave in Court of Appeals

A town court clerk has sought leave to appeal to the state’s highest court the Appellate Division’s rejection of the clerk’s refusal to provide requested records to the Albany County Public Defender as described in the Dec. 12, 2022, edition of News Picks. The Daily Record reported on April 6th that the leave application focuses “on one specific question: whether, under state Judiciary Law, a court clerk can decline to process record requests when the processing would be ‘so unduly burdensome as to be nearly impossible because the requestor has omitted key identifying information that relevant court policy reasonably requires all requests to include?’” At issue are requests that specify a date, proceeding, and defendant, with or without a docket number, and ask for the 10 minutes (or other block of time) following the requested case (without information identifying the separate case). This requires clerks to “listen to the requested recording and then review the related cases to make sure they can be publicly released” which is, the clerk asserts, unduly burdensome.

May is Mental Health Month

Within the criminal and family legal systems and across society, mental illness is taking a rising toll. National Mental Health Month offers an opportunity to discuss mental health issues in a variety of situations. Information and resources can be found at, among other places, a NAMI (National Alliance on Mental Illness) webpage; a Mental Health America webpage; and a SAMHSA (Substance Abuse and Mental Health Services Administration) webpage. A mental health statistics webpage on Forbes Health points out the “snowball effect” that incarceration can have, “exacerbating existing conditions and potentially contributing to new diagnoses such as depression, anxiety, PTSD and substance abuse,” and also notes that “those who have health care coverage following their release—and presumably, the access to mental health services that affords—may have less risk of recidivism [footnote omitted].”

Albany Pilots Mental Health Program in Lark Street Neighborhood

An eight-week pilot program in Albany’s Lark Street Neighborhood aims to “assess the needs“ of unhoused community members with a combination of police officers and social workers. According to officials, the aims are decarceral -- Albany County Executive Dan McCoy called it a way to give “law enforcement the mental health resources they need to properly respond to mental health crises instead of simply putting someone in jail,” and Albany Mayor Kathy Sheehan insisted it “[i]sn’t about calling the police and arresting people. It’s about seeing people who are in crisis, who either have mental health or addiction issues, who people want to ensure get the help that they need.” By contrast, New York City expanded a program last summer that sends social workers, with no law enforcement, to some emergency calls in certain neighborhoods.

Listen to or read this segment from WAMC for more details on the Albany pilot program.

Albany County Supreme Court Rules on Facts of TERPO Case Without Addressing Constitutionality

A Mar. 1, 2023, decision from the Albany County Supreme Court, Hines v Doe, 2023 NY Slip Op 23059, dissolved a temporary extreme risk protection order (TERPO) against the pro se respondent, Doe, and dismissed the proceeding. The court found that it did “not believe that Doe represents a clear and present danger to himself.” The TERPO had been issued after an incident where Doe sought to end his life. Doe was transported to a hospital, evaluated, and discharged the following day with no mental health diagnosis and no prescriptions. Doe had surrendered his four firearms to the State Police and a State Police investigator commenced the CPLR article 63-a proceeding to retain them. 

The Court discussed two U.S. Supreme Court cases regarding the Second Amendment (Heller and Bruen) and assessed whether there was a “compelling state interest in preventing suicide and whether disarming respondent is the least restrictive means to serve that compelling interest [citation omitted].” The court looked at whether Doe was mentally ill; if so, the Second Amendment would not factor into the analysis. Finding MHL 9.39 uninformative as whether a person who attempts or threatens suicide is mentally ill, the court turned to case law and reasoned that “a suicidal ideation or attempt is not mental illness per se.” After exploring the history of suicide and public interest in protecting people from self-harm, the court determined that if someone is about to commit suicide, the State may seize their weapons without violating the Second Amendment. 

The inquiry then turned to the length of the seizure/prohibition. The court credited Doe’s testimony and found that the “cooling down period” after his suicide attempt permitted Doe time to reflect, that he decided he wanted to live, and had an explicit, non-suicide purpose for the firearms. The court also noted that Doe had scheduled appointments with a new physician and a therapist.

Other TERPO and ERPO findings have been noted in News Picks. See for example the April 17th edition.

False Memories Can Form Almost Instantly

Scientists in the Netherlands, United Kingdom, and Canada have looked at the potential inaccuracy of short-term memory and found that study participants regularly misremembered letters they had just viewed when those letters were not “expected” ones. While “[p]eople were generally good at remembering when a typical letter was shown,” accuracy rates plummeted when it came to letters that were reversed in orientation, according to an article from Gizmodo.com. Delays of just seconds increased the inaccurate recall. Inaccuracy rates for typical letters were around 10% but increased to as much as 40% when it came to mirrored letters; recall a half-second after seeing letters showed inaccuracy of under 20% but three seconds later it went as high as 30%. “[T]he findings—published Wednesday in PLOS One—indicate that our memory starts being shaped almost immediately by our preconceptions,” the article says.

The reliability of memory, central to so many cases, has long been studied in a variety of ways. The Feb. 14, 2017, edition of News Picks included an item headed “Article on Memory in Disputed Sexual Encounters Available Online.” How such research may—or may not—be used in court is another central question. See, for example, this article from late last year: “What can expert witnesses reliably say about memory in the courtroom?” But even inadmissible studies can inform lawyers as they seek to understand and deal with conflicting accounts in clients’ cases. For assistance in cases involving possible memory or other scientific issues, lawyers can contact NYSDA’s Discovery and Forensic Support Unit.

New Organization to Fight for Systemic Change in the “Child Welfare System”

Attorney David Shalleck-Klein, formerly a public defender in the family and criminal defense practices at the Bronx Defenders, CLE presenter for NYSDA, and Founder and Executive Director of the Family Justice Law (FJLC), recently penned an op-ed in a New School Center for New York City Affairs publication. The item, entitled "The Constitution Prohibits Unreasonable Searches. Child Welfare Investigators Routinely Conduct Them," highlights the searches that the NYC Administration for Children’s Services (ACS) routinely conducts during its investigations in violation of the Fourth Amendment. Shalleck-Klein describes coercive and illegal tactics that ACS uses to gain access to homes to conduct intrusive searches. This occurs despite legal mechanisms that would allow ACS to get a court order if the evidence shows they are legally entitled to one (see FCA 1034). The FJLC’s mission is to “use affirmative litigation to seek justice for families mistreated by the child welfare system. It will challenge systemic abuses of government power that lead to the illegal separation of children from their families. It will seek redress for harms while promoting change that would help families survive and thrive.”

Association News

Mailing Error With the REPORT

Members should have received or will be receiving soon the print copy of the Jan.-Mar. 2023 issue of the Public Defense Backup Center REPORT. Unfortunately, the mailing list contained some errors (names and mailing addresses were not properly aligned), so your copy may have been sent to the correct location but has the wrong name. We apologize for the error. If you do not receive a print copy of the REPORT, please contact us at info@nysda.org or 518-465-3524 and we will mail one to you.

Upcoming NYSDA Trainings

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, PhD, 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, PhD, JD, Associate Professor, University of Oklahoma College of Law. Details and registration information coming soon.