Substantive legislation passed and signed days before the state budget deadline of April 1st included bills decriminalizing some possession of marijuana and banning solitary confinement. NYSDA has long supported reform in these areas, and thanks the many advocates and legislators who worked to make progress happen.

Pressure from advocates calling on the State to halt the use of solitary confinement continued after legislative passage of a bill, with mental health advocates among those rallying supporters to ask Governor Cuomo to sign it. He delayed until late on the deadline date of March 31st, as noted by the Times Union. Despite the acronym for the bill’s title, the “Humane Alternatives to Long-Term Solitary Confinement Act” (HALT Solitary Confinement Act) does not prohibit, but only limits, use of isolated confinement. L 2021, ch 93. It does not become effective until Mar. 31, 2022. And the Governor’s signature was conditioned on certain changes, as noted in the approval memo. The caveats and one-year delay, while noted in a New York Times article and other press accounts, were not highlighted in the Governor’s press release. The Campaign for Alternatives to Isolated Confinement released a detailed summary of the bill and the chapter amendments, which appear in S2059-C/A3009-C, Part NNN.

Whether you call it “adult-use legalization” or “decriminalization” – or whether you spell it “marihuana” or “marijuana” or “cannabis” – New York State has changed the law regarding possession of the ubiquitous drug alternately said to be harmless and a gateway to addiction and depravity. For defenders, there is much to learn going forward about the lengthy new provisions (L 2021, ch 92), and pitfalls to beware while celebrating the removal of the often-crushing yoke of prohibition as to small amounts of pot.

Some of the provisions of particular note to defenders are:

While negotiations included possible amendments to VTL 1192, the final bill did not include any changes.

Just two days after the Governor signed the Marijuana Regulation and Taxation Act, a webpage for the NYS Office of Cannabis Management was available, with relevant links including one to the legislation. And a few days later, the National Institute of Justice released an article entitled “Field Sobriety Tests and THC Levels Unreliable Indicators of Marijuana Intoxication.”

Questions that loom include: will the expungement provisions, lauded in celebratory articles like this one on TheVerge.com, work as intended—and what must be done to ensure that they do? Will concerns about impaired driving focus on public safety or create the latest excuse for police overreaction and systemic bias, and what forensic science (real and imagined) will come into play? Will the official penalties for underage possession, described in a Gothamist news item as “a civil penalty of $50 and drug education” that “do not escalate with the number of offenses” really benefit youth or enable their continued harassment by law enforcement? Will the new laws redound to the benefit of parents in Family Court who use marijuana or will family defenders and clients still have to fight puritanical mores among social workers, judges, and others?

NYSDA will be presenting a webinar on the new law on May 6th (see Association News below) and invites practitioners to contact the Backup Center legal staff with questions and to share developments in their jurisdictions.

After unanimous passage in both the Senate and the Assembly, Governor Cuomo has signed into law a bill extending access to Veterans Treatment Courts (VTC) throughout the state. L 2021, ch 91. Prior to this legislation, there were approximately 33 VTCs in 25 counties. Due to the lack of a VTC in over half of the counties of the state, about one-third of New York veterans lacked access to a VTC. The new law authorizes the transfer of cases from jurisdictions without VTCs to adjacent counties with VTCs and requires the chief administrative judge to establish new VTCs, to the extent practicable, to fulfil the purposes of CPL 170.15(5), 180.20(4), 230.11, and 230.21.

VTCs have a proven track record of reduced recidivism and alcohol and drug use, while promoting positive life changes. The restoration of veterans’ sense of honor through the structure, and the peer to peer support provided by VTC mentors and staff, allows veterans to re-enter their communities in a positive and meaningful way, often with assistance of VA therapies.

NYSDA’s Veterans Defense Program (VDP) has been involved in advocacy for building VTCs statewide from the inception of this legislation through participation in a consensus working group that proposed a statewide extension of access to VTCs, and lobbied for needed amendments to the legislation as proposed. NYSDA and the VDP will continue to work to expand access to VTCs to all veterans who are facing criminal charges throughout the state.

The VDP staff look forward to training and working with defense counsel whose clients will have access to VTCs when the law takes effect on Apr. 28, 2021. Defenders with questions about representation of veterans are encouraged to contact VDP Director Gary Horton at (585) 219-4862 or [email protected].

Unfortunately, despite the efforts of public defense organizations, including NYSDA, and many assigned counsel lawyers, the state budget did not include an increase in the assigned counsel fee rates in County Law article 18-B. We will continue to advocate for increased rates and a mechanism for ensuring regular increases, which are critical to ensuring the availability of qualified attorneys to provide representation in every county in the state.

The budget included several legislative changes of interest to public defenders, including:

For more information about the State Budget, please contact the Backup Center at (518) 465-3524, [email protected], or via the contact form on our website.

Drew DuBrin, Special Assistant Public Defender in the Appeals Section of the Monroe County Public Defender’s Office, has updated his Criminal Procedure Law Section 30.30 (1) Manual. The Winter 2021 Edition (including 2020 amendments) is available here. As always, NYSDA thanks Drew and his office for sharing this valuable resource with defenders statewide.

New York City Corrections officials “for months brushed off serious concerns about wrongfully recorded calls between inmates and legal advisers — even though public defenders sounded the alarm in March 2020,” according to a Daily News article on Mar. 23, 2021. And at least some privileged conversations wound up in prosecutors’ hands. The issue was discussed at a recent City Council Criminal Justice Committee meeting.

The jail phone system in the City is managed by Securus Technologies Inc., which has been involved in past controversies regarding client-attorney conversations. In 2019, Prison Legal News published an article about attacks on privileged conversations from jails across the country that included mention of Securus. In 2020, Jonathan Stribling noted in “Legal Cybersecurity in the Digital Age” that “[p]rivileged and confidential attorney-client communication is illegally being recorded as a matter of course by contractors working for the government, like the telephone system contractor Securus.” Stribling’s New York Civil Liberties Union publication was included in materials for NYSDA’s training last year on “Legal Cybersecurity and Ethics for Defense Attorneys During COVID and Beyond.” According to a Mar. 26, 2021, post on DavisVanguard.org, NYC defenders demanded that the City not renew its contract with Securus, set to expire on March 31st.

Lawyers’ duty to avoid potentially compromised means of communicating with clients who are incarcerated is widely noted. For one example, see Standard IX of the ILS Appellate Standards and Best Practices, which includes this (emphasis added): “Once a relationship has been established, counsel may communicate by phone, but should be mindful that such conversations with incarcerated clients typically are not secure.”

Near the end of March, the Department of Corrections and Community Supervision (DOCCS) posted news of tremendous interest to current and past public defense clients and many others. Transfer into DOCCS of people being held in county jails as “state ready” was set to begin on March 30. And future resumption of visitation for people held in DOCCS was announced; visitation in maximum security facilities is set for April 28th and all other locations on May 1st. The schedule is intended to “help ensure that incarcerated individuals with comorbidities that have chosen to receive the vaccine will be fully vaccinated when visitation resumes.” The provisions are, of course, subject to change if infections rates increase at one or more facilities. Rules for visiting, including limitations on the number of people allowed in visiting rooms, are set out on the DOCCS website.

More people in DOCCS facilities, and in jails, should be inoculated against COVID-19 soon thanks to a lawsuit filed in Bronx Supreme Court by the New York Civil Liberties Union (NYCLU) and four City public defense providers. A decision was issued on March 29th that calls the distinction made between incarcerated people and those living in other adult congregate facilities irrational and finds it to violate equal protection of the law. On behalf of clients, the client community, and all caring human beings, NYSDA congratulates and thanks the organizations who brought the suit—the Neighborhood Defender Service of Harlem, NYCLU, The Bronx Defenders, Brooklyn Defender Services, and The Legal Aid Society.

The NYS Office of Indigent Legal Services (ILS) has announced a Request for Proposals (RFP) for the “establishment of a model Family Representation Office (the ‘Model Office’) in a county outside of New York City to provide legal representation to parents in child protective proceedings under New York Family Court Act Article 10 and termination of parental rights proceedings (state intervention cases).” According to the RFP announcement, “[t]he defining feature of this demonstration project is implementation of client-centered, holistic, and interdisciplinary representation that addresses both the legal and social service issues confronting parents affected by the child welfare system, at all critical stages of their interaction with the system.” This is a three-year award with the total available funds for the award being $2,610,417. The full RFP announcement with requirements and deadlines can be found here. RFP applications are due no later than May 24, 2021, at 5:00 pm.

On Mar. 26, 2021, the New York State Association of Criminal Defense Lawyers (NYSACDL) and the National Association of Criminal Defense Lawyers (NACDL) released a groundbreaking report on the impact of the trial penalty in New York State entitled “The New York State Trial Penalty: The Constitutional Right to Trial Under Attack.”

The Executive Summary to the report notes four key findings:

Based on these findings, the NYSACDL Trial Penalty Task Force proposed “a set of 10 principles and 15 policy recommendations to mitigate the effect of the trial penalty and restore the criminal trial’s central role in the justice system.” The three key elements of those principles and recommendations are “reducing defendants’ exposure to severe and disproportionate sentences”; “protecting defendants who exercise their rights”; and “using data to drive reform.”

NYSDA commends the NYSACDL and NACDL for the work that went into this landmark study.

April 23, 2021, 10:00 am – 2:30 pm: Assigned Counsel Appeals Training- Family Court Practice (co-presented with the Appellate Division, Fourth Department)

The program will feature:

There is no cost to attend this program, but pre-registration is required. If interested, please register here.

Apr. 27, 2021, 11:00 am – 1:30 pm: Planning for the Family when a Client Faces Incarceration, Deportation or Other Emergencies

Co-sponsored with the Western New York Regional Immigration Assistance Center (RIAC), the program will feature Mary Armistead (Staff Attorney, The Legal Project); Judith Gerber (Chief Attorney, Attorneys for Children Unit, Legal Aid Bureau of Buffalo); Jessica Prince (Policy Counsel, Family Defense Practice, The Bronx Defenders); and Sophie Feal (Supervising Attorney, Western New York RIAC, Legal Aid Bureau of Buffalo). There is no cost for this program, but pre-registration is required. If interested, please register here.

May 6, 2021, 12:30 – 2:00 pm: Marijuana Legalization in NY: Criminal Defense Basics, presented by Emma Goodman (Attorney, Special Litigation Unit, Case Closed Project, The Legal Aid Society); Eli Northrup (Policy Counsel, Criminal Defense Practice, The Bronx Defenders); and Anne Oredeko (Supervising Attorney, Racial Justice Unit, The Legal Aid Society). Registration information coming soon.

May 14, 2021: I Just Got Assigned to a DVSJA Resentencing- What do I do Now?, an orientation program for attorneys taking assignments in DVSJA resentencing matters. Full program details and registration information coming soon.

NYSDA is proud to announce that we have been awarded a grant from The New York Bar Foundation (TNYBA) to assist us in providing no-cost trainings to family court public defense practitioners. This is the final year of a three-year grant intended to help defenders improve the quality of family court mandated representation. We used the first year of the grant to better understand issues in the family defense community, and to give defenders an opportunity to voice their concerns. We did this through a convening of chief defenders (including assigned counsel administrators) and supervisors from institutional provider offices, followed by a needs survey distributed to defenders statewide and completed anonymously. Among other things, the survey found a need for additional trainings in all areas of family court practice. The survey report can be found here. In response to the survey findings, the second year of the grant was used to provide no-cost practical skills webinars focusing on specific issues in abuse and neglect proceedings.

In keeping with the commitment we made in our Black Lives Matter to the New York State Defenders Association statement, “to expose and end the overt racism and implicit biases that traumatize and re-traumatize entire communities,” we intend to use the third year of the grant to help defenders address the pervasive problem of systemic racism and social injustice embedded within the family court and family regulatory systems. We believe that CLE trainings are a critical resource needed to improve the quality of family court public defense representation for clients, which includes addressing racism and social injustice within that system. Defenders with questions about family defense, including training programs, should contact NYSDA’s Family Court Staff Attorney Kim Bode at [email protected].

Please support NYSDA’s work to improve the quality and scope of public defense during this critical time by renewing your membership for 2021. You can renew simply and securely on our website or by mail (address below) or phone (518-465-3524). To renew online, go to our Sign In page. Your username should your email address. The first time you log in, you will need to use the Forgot Your Password? option to set a password that you can remember. If you have any questions about your membership or our Association, please feel free to contact Executive Director Susan C. Bryant at (518) 465-3524 x26 or [email protected].