Summary of Changes to Bail and Discovery Reform
On April 3, 2020, changes were made to the bail and discovery laws in New York State. This was done as part of the state budget. See L 2020, ch 56, Part UU and Part HHH at https://legislation.nysenate.gov/pdf/bills/2019/A9506B . NYSDA’s statement on the bail and discovery law rollbacks is available at https://www.nysda.org/resource/resmgr/pdfs--other/NYSDA_statement_on_bail_and_.pdf .
 
Bail Changes:  While a “dangerousness” standard was not included, there are substantial changes to conditions of release and an expansion of qualifying offenses for which a person may be detained on bail, effective in 90 days (July 3, 2020). Some of the changes are briefly summarized here and include:
  •  additional restrictions on travel and the ability of the court to order relinquishment of passport;
  • stay away orders expanded allowing court discretion and the ability to order individuals to stay away from and not associate with witnesses and co-defendants;
  • placement into pretrial services for mandatory programming, including counseling, treatment, and intimate partner violence intervention programs;
  • court can remove a person under Mental Hygiene Law section 9.43;
  • court can require “diligent efforts” to maintain employment, housing, enrollment in school or educational programs;
  • expand conditions on stay away orders with consideration for “safety of victim” and may add specific conditions at the request of the complaining witness; and
  •  the expansion of electronic monitoring, allowing municipalities to contract with private companies for monitoring equipment and other items. 
 
The list of qualifying offenses has now been expanded to include certain misdemeanors, and non-violent and violent offenses. ( Summary of New Budget Amendments, Bail, Discovery and More – Credit and thanks to Yung-Mi Lee, Brooklyn Defender Services)   Also included was a provision that a person forfeits their right to get court notification if they refuse to provide contact information. 
 
Discovery Changes:   While defenders have been adapting to the newly enacted discovery laws in CPL article 245 since Jan. 1, 2020, there are now significant adjustments made effective in 30 days (May 3, 2020). Some of those adjustments include changes to timelines for initial disclosure; disclosure for persons IN custody must be made in 20 days and disclosure for those OUT of custody must be made in 35 days. Voluminous discovery (body camera footage, surveillance, and dashboard camera video) may be stayed an additional 30 days without motion. For simplified information and traffic infractions, discovery must be turned over no later than 15 days before trial, but note the defense may  still  make a request for earlier disclosure. Protective orders have now been expanded, and there are items which have been previously disclosed that are now subject to more limitations and later disclosure requirements including 911 calls, complaining witness contact information, and 911 caller information. Under certain types of criminal charges, the DA is no longer required to seek a protective order. There have also been changes to expert witness disclosures, including providing only a list of proficiency tests and results, instead of the substantive tests. Please note this is just a brief synopsis of the changes and more substantive information can be provided by the Backup Center. Please look out for future training opportunities as well. 
 
30.30 Changes:  The court may find the prosecution's Certificates of Compliance valid in the absence of lost, destroyed, or unavailable evidence (but there is still a good faith showing with remedies available for nondisclosure). Challenges to Certificate of Compliance and readiness must be made by motion. 
 
SCR - From “Some Credible Evidence” to “A Fair Preponderance of the Evidence”
For the family defense community the one bright shining star in this year’s state budget, at Part R of the bill noted above, is an amendment to the Social Services Law, which will raise the standard of proof before someone can be placed on the State Central Register (SCR). For an “indicated” case of child maltreatment, the requirement is elevated from the bare minimum standard of “some credible evidence” to a “fair preponderance of the evidence.” Other highlights include the staying of any request to amend an “indicated” report, whether it be for maltreatment or abuse, during the pendency of a Family Court Act Article 10 case arising from the same allegations. When the final outcome of the child welfare case is favorable because “child protective services withdraws such petition with prejudice, where the family court dismisses such petition, or where the family court finds on the merits in favor of the respondent, there shall be an irrebuttable presumption in a fair hearing ... that said allegation as to that respondent has not been proven by a fair preponderance of the evidence.” This should result in the indicated report being amended to unfounded. Of significance to our family court clients, is the effective sealing of “indicated” reports of child maltreatment after 8 years from the date the “indication” occurred: “any such indication of child maltreatment shall be deemed to be not relevant and reasonably related to employment.” Those who have been found by the court to have committed abuse will still have their names on the Register for up to 28 years, depending on the age of the child at the time of the incident.
 
Perhaps most disappointing to our clients is that these changes do not go into effect until Jan. 1, 2022 . Therefore, anyone who is the subject of a child protective services investigation commenced prior to that date is still subject to being “indicated” based on the minimal standard of “some credible evidence.” It is unclear how those placed on the SCR prior to Jan. 1, 2022, will be affected by the new law. NYSDA is analyzing the new law with an eye to what arguments might be made to assist clients in the nearly two-year interim.
 
Attorneys are encouraged to contact Family Court Staff Attorney Kimberly Bode at the Backup Center.
 
COVID-19: Breaking News: Judge Grants Release to Several in NYC
Under New York’s due process test with regard to confinement conditions, a court “weighs the benefit sought by the government from a condition against the harm that the condition imposes on inmates,” notes New York County Supreme Court Judge Mark Dwyer in People ex rel. Stoughton v Brann , decided on Apr. 6, 2020. The court rejected the respondents’ contention that the “‘reasonable care’” they have taken to mitigate risks of COVID-19 satisfies due process, stating: “[d]ue process does not excuse prison officials who mean well, but have no effective way to protect inmates from potentially fatal epidemics.” After setting out the inability to practice at Rikers Island the measures needed to contain the documented outbreak there, the court ordered the release of 18 petitioners who “are afflicted with conditions acknowledged to endanger them: heart disease, serious respiratory conditions, cancer, diabetes, uncontrolled HIV, and so forth,” and some of whom are also relatively old. The remainder of the 32 plaintiffs named in the suit received no relief. These include someone with glaucoma and someone who is HIV-positive, “but the condition is well controlled.” People charged with violent crimes cannot be denied release if detaining them puts them “at substantial risk of death or other serious physical injury,” the court noted near the conclusion of its decision, describing one person’s multiple health risks as warranting release despite the accusation of having committed “a vicious murder.” The ordered release is temporary, the court adds, and includes restrictions on liberty such as, for some, home confinement.
 
Defenders, Others, Seek Releases to Save Lives of Those Incarcerated
Across the state, public defenders and others are trying to stop the spread of the novel coronavirus in jails and prisons. Working to protect individual clients, particularly those at risk, as well as everyone, defenders are filing writs, demanding government action, and seeking to raise public awareness of the threat COVID-19 in facilities poses to those incarcerated, those who work there, and to all communities.
 
Media accounts reflect these efforts. An April 7 account in the Gothamist about the first death of someone held at Rikers Island, a man held there for parole violation, notes that The Legal Aid Society filed a lawsuit against the City and the State. It also notes a comment by the Governor last Friday that the State has no way to reduce the population in state prisons. But a group of public defense programs and law firms have proposed a blueprint for doing so; NYSDA is among the signatories of that April 3 letter to the Governor. Only the day before, another article reported that DOCCS had begun allowing corrections and parole officers, and prison workers, to wear masks; as the spouse of one prison employee observed, “if prison officials could not protect inmates from the potentially deadly coronavirus, they could not protect officers such as her husband.”
 
Activists and family members are also demanding release of people vulnerable to the virus due to age or underlying health issues, as WXXI News reported on March 30. They call for the Governor to grant clemencies and for the Parole Board to release vulnerable people.
 
One category of cases that lawyers have focused efforts on are those of people held on parole violations. The lawsuit noted above “alleges that New York officials have mostly stopped adjudicating parole violations amid the coronavirus pandemic, leaving hundreds of people waiting  in jails as the virus spreads,” according to the New York Law Journal on April 4. As noted by the Investigative Post on April 6 , “[p]ublic defenders and defense lawyers have started submitting motions seeking bail relief for some inmates held in Erie County jails.” NYSDA’s Backup Center has been hearing from defenders in other counties who are preparing to file writs.
 
Check “ Coronavirus Efforts to Seek Release ” under “More in this Section” on NYSDA’s Coronavirus Webpage . Information there is being updated as quickly as possible; lawyers are invited to send pleadings to the Backup Center for sharing either on the page or individually when requests from other lawyers are received.
 
Social Distancing and CDC Guidelines To Fight Against COVID-19 are Impossible to Achieve Inside Jails and Prisons
A wide range of information sources relevant to people held in detention during the COVID-19 outbreak exist for defenders and others to use. While the CDC has issued specific guidelines relating to prisons and jails, it appears containment and spread of the virus is impossible. The vulnerable prison population has been repeatedly highlighted in recent news as well as various opinions on the opportunity of freeing thousands of inmates to help stop the spread of the coronavirus.
 
On Monday, Attorney General William Barr sent a memo to top federal prosecutors across the country urging them to consider not only the risks a defendant might face in detention, but the risk inherent in increasing the jail population at a time when cases of the virus are on the increase.

NYC Correction Officers Ordered to Return to Work after Testing Positive for Coronavirus
Despite CDC Guidelines for Correctional Facilities, conditions are dire and officers are being called back to work even when they are symptomatic and confirmed positive for COVID-19. Several  Rikers Island correction officers refused to return to their posts the morning of Wednesday April 8th after working 24-hour shifts at a jail with nearly 200 inmates who have coronavirus. “Correction Officers’ Benevolent Association President Elias Husamudeen said the new developments are another indication that the overwhelmed agency has not done enough to protect its personnel.” Correction officers assigned, “are being forced to work triple tours, often missing meals and coming in on their personal days. Officers who have tested positive, who are out sick and who still display symptoms are being told by (the Health Management Division) at DOC that they should come back to work even as their personal doctors have told them otherwise.”

Defenders and Others Should Practice Self-Care
An article entitled " What It's Like to Be a Public Defender During a Pandemic " illustrates the situation defenders are in. The staff at NYSDA understand the considerable amount of stress defenders may be experiencing while trying to balance working as best as you can to assist your clients during this uncertain time with the health and wellness of your own families. We also understand that many of you are trying to be creative in your release advocacy for clients currently detained and your representation of parents whose children have been removed. 
 
Headspace and Governor Cuomo's Office teamed up to create the "New York State of Mind" website as a mental health resource for residents facing this public health crisis. New Yorkers across the state can now access a specially curated collection of science-backed, evidence-based guided meditations, along with at-home mindful workouts, sleep guidance, and kids content to help address rising stress and anxiety. Available at www.headspace.com/ny , the collection will also feature Headspace co-founder and former Buddhist monk Andy Puddicombe, who will share special video messages with the people of New York to help offer guidance, support, and solidarity .


Association News

Charles F. O’Brien, 1956-2020
It is with the deepest sadness that we announce that NYSDA’s former Executive Director and long-time Managing Attorney, Charles F. O’Brien, died on Mar. 26, 2020, after a long illness. Charlie’s determination to provide to public defense lawyers and programs the support they need to ensure quality representation across the state undergirded NYSDA’s many programs. His quiet passion for justice and his breadth of knowledge and interests influenced the development and success of NYSDA’s Public Defense Case Management System, its well-respected CLE training programs, and other forms of assistance, including direct defender services and publications. His obituary  highlights Charlie’s role as a family man. A tribute by NYSDA Board of Directors member Andy Correia, here , evokes the qualities and actions that made Charlie indispensable to the Backup Center’s staff and work and to defenders statewide. NYSDA offers condolences to all who grieve in the wake of this loss and honors Charlie by continuing the work to which he dedicated his career.


Update on NYSDA Public Defense Backup Center and Veterans Defense Program Operations During COVID-19 Pandemic
NYSDA’s Public Defense Backup Center and Veterans Defense Program (VDP) staff continue to work remotely. Backup Center Staff may be reached by phone, email, or through the website. Messages will be routed to the correct staff member. Not all staff are able to have calls forwarded to their homes; phone messages can be left via the main number –  (518) 465-3524   – by using the general voicemail or by using the spell-by-name directory to access the voicemail of individual staff members. The general email address is  info@nysda.org . The website contact form is at  https://www.nysda.org/general/?type=CONTACT .

The Public Defense Case Management System (PDCMS) staff can be reached at  (518) 465-3524 , Option 3, or  pdcmssupport@nysda.org .

VDP staff contact information is available at  https://www.nysda.org/page/VDPWelcome .

NYSDA appreciates the valiant work being done by defenders across the state to provide client-centered representation in the midst of a crisis that threatens the health and well-being of everyone. We are here to support your efforts, both those revolving around COVID-19 and those involving other issues that clients still face.