Chief Judge DiFiore has directed the Commissioner of Jurors to begin showing an approved video regarding implicit bias to all prospective jurors, effective immediately. The ten-minute video can be accessed via the Jury Service and Fairness link on the Unified Court System website. There is also a link to a written transcript.

Reminder: Public Comment Sought on Unconscious Bias Revisions to Criminal Jury Instructions

The Criminal Jury Instruction & Model Colloquies Committee, co-chaired by Hon. William C. Donnino and Hon. Patricia D. Marks, seeks public comment on the revised jury instructions related to unconscious bias. Those revised instructions can be viewed here. Persons wishing to comment on the proposed instructions should email their submissions to [email protected] or write to: Shane Hegarty, Esq., Assistant Deputy Counsel, Office of Court Administration, 25 Beaver Street, 11th Fl., New York, New York, 10004. Comments must be received no later than Monday, Aug. 30, 2021.

OCA Internal Memo Seeks to Undermine Impact of Crawford v Ally Decision

In a follow up to our July 2nd News Picks from NYSDA Staff item discussing Crawford v Ally, we note that New York Focus has published an article entitled “New York Judges Lock the Accused Out of Their Homes, Skirting Review Required by Landmark Ruling, Critics Charge.” “An appellate court ordered hearings for defendants facing orders of protection that could separate them from their homes and families. But some judges — following a memo from state court officials — aren’t adhering to the ruling, defense lawyers say.” Defense attorneys have applauded the Crawford decision, which directs courts to give individuals a meaningful hearing when presented with “information showing that there may be an immediate and significant deprivation of a substantial personal or property interest upon issuance of a [temporary order of protection].” Meghna Philip, an attorney with Neighborhood Defender Service of Harlem, was quoted: “‘These orders have been rubber stamped by the courts without any opportunity for defendants to contest them’ .… ‘Our clients are displaced from their homes, unable to see children or spouses, or provide care for their elderly parents.’“

However, a very disturbing and troubling internal memo was circulated within the court system soon after the Crawford decision that seems to violate the intent and purpose of the Court’s ruling. As the article says, “[a]ddressed to court administrators by a counsel for the court system, the memo emphasizes — using bold type — that the decision ‘should not be read as to require live witnesses and/or non-hearsay testimony.’ That gives judges the option of holding a hearing that simply uses the evidence prosecutors already presented in their case.” Jonathan Oberman, a Cardozo Law School professor, was quoted in the article: “’The memo is this kind of ahistorical effort to … instruct trial judges to take the most restrictive reading of the decision, whether that reading is actually supported by the case or not ….”

Kamins Discusses Crawford Decision

In a New York Law Journal article, Barry Kamins discusses Crawford and the impact the decision will have. Of significance is the requirement for live testimony. “In granting an evidentiary hearing, one court held that ‘[t]he risk of error in determining whether a temporary order of protection excluding a defendant from the home should be issued is clearly greater when the determination is based only on the documents and arguments of counsel available to the court at arraignment rather than on the testimony of live witnesses subject to cross-examination.’ People v. Forman, 145 Misc.2d 115 at 128 (Crim. Ct. New York County 1989). The court went on to explain that live testimony would better assist a court in making critical assessments of the complainant’s credibility, the extent of any injuries suffered and the defendant’s history of behavior toward the complainant.”

From there, Kamins discusses a US Supreme Court decision about in-person testimonial hearings. “Thus, an in-person testimonial hearing would appear to satisfy the Supreme Court’s requirement that a hearing must provide a ‘real test’ of an application to deprive an individual of a property right. Fuentes v. Shevin, 407 U.S. 67, 97 (1972). The court went further to explain that ‘[p]rocedual due process is not intended to promote efficiency or accommodate all possible interests: it is intended to protect the particular interests of the person whose possessions are about to be taken.’ Id at fn. 22; see also Sniadach v. Family Finance of Bay View, 395 U.S. 337 (1969).” Such a hearing “would need to be conducted in court rather than electronically.” The rest of the article discusses the burden of proof. In closing, Kamins explains, “[i]t is clear that until another Appellate Division or the Court of Appeals rules otherwise, a defendant who is the subject of a temporary order of protection and, as a result, is potentially deprived of a substantial personal or property interest, shall be afforded a prompt evidentiary hearing.”

Please contact the NYSDA Backup Center at [email protected] if you are encountering problems obtaining a proper Crawford hearing.

The Immigrant Defense Project (IDP) has released a new guide, “ICE Knows that You’re In DOCCS. What Happens Next?” This will help individuals, families, and attorneys understand the contact a noncitizen in DOCCS custody may have with ICE while serving their criminal sentence and/or at the time of release. It includes information on how ICE and DOCCS share information; the importance of filing a notice of appeal on a criminal conviction (including instructions and samples for pro se filings); how to navigate removal proceedings while in custody; the reasonable fear process for people who are not in removal proceedings; and information about ECPDO and CPDO (Early/Conditional Parole for Deportation Only) for those who do not want to fight their case. NYSDA thanks the IDP staff for sharing this valuable resource with the defender community.

The Office of Children and Family Services (OCFS) has introduced revised proposed regulations (starting on pg.7), which, if adopted, would “establish standards for the approval and administration of host family homes.” This is a revision to the proposed rulemaking originally issued by OCFS last year, and reported in the March 26, 2020, edition of News Picks. The revised rulemaking comes on the heels of opposition by numerous family defense and advocacy groups, arguing that it was an unnecessary rule change as other legal remedies exist for parents to make temporary living arrangements for their children; others, including NYSDA, equated it to a “back door” foster care system. Publications, including RISE, also expressed opposition, stating that they were “alarmed in reviewing the regulations to see a picture of respite provision that is out of sync with parents’ self-identified needs”.

According to OCFS, they received comments during the public comment period from 137 stakeholders, such as the New York Uniform Court System, the New York State (NYS) Permanent Judicial Commissioner on Justice for Children, attorneys for children and families, national and state advocacy agencies, parents impacted by the child welfare system, and survivors and child witnesses of domestic violence. Please see OCFS’s Summary of Assessment of Public Comment for more details regarding the comments it received and considered. Based on a review of these changes, it appears that the revised rulemaking is short on substantive changes and fails to address the concern of inserting more governmental regulations into what should be private family matters. A chart provided by OCFS comparing the original to the revised version can be found here.

Those wishing to submit comments on the revised proposed rule change can email OCFS at [email protected] until the expiration of the 45-day comment period on August 21, 2021. NYSDA Family Court Staff Attorney Kim Bode would appreciate receiving copies of submitted comments at [email protected]

For the second time in less than two years, the NYS Office of Indigent Legal Services (ILS) has announced the award of a grant to make legal representation available to parents in child welfare matters, even before court action is initiated. This RFP, for an upstate model family representation office, “contemplates an interdisciplinary team approach in which a lawyer and social work staff work [sic] (social worker, parent advocate) help parents navigate the demands of the child welfare and court systems. The lawyer will provide expert legal advocacy, both in and out of court, and will guide the parent through negotiation and decision-making in relation to the complex laws and procedures governing the legal case.” [Footnote omitted.] This is not the first time that Monroe County has been chosen for this award. As reported in the Feb. 5, 2018, edition of News Picks, Monroe County was offered the first RFP award for a model family representation office in 2017, but the county’s leadership turned it down a short time later, expressing concerns of unintended consequences that could result in children being less safe, as a result of timely representation of parents. After much uncertainty, that first RFP was ultimately awarded to Westchester County, where the model office is currently being housed by Legal Services of Hudson Valley. The award is pending final approval by the Office of the State Comptroller and the Monroe County legislature.

In a potential game changer for providers of family court mandated representation, federal funding which has previously been used to support youth in foster care will now also be made available to enhance direct client representation in Family Court Act article 10 and 10-a abuse, neglect, and Termination of Parental Rights (TPR) matters. As reported in the July 19th edition of The Imprint Youth & Family News, the New York State Office of Children and Family Services (OCFS) has announced a plan to funnel these Title IV-E federal funds to individual counties and tribal governments, as well as the NYS Office of Court Administration. “The plan is being released two years after the chief judge of the state highlighted a ‘crisis’ in legal representation — particularly for parents being accused of child maltreatment, who are disproportionately people of color.”

Patricia Warth, Director of the NYS Office of Indigent Legal Services (ILS), announced on July 20, 2021, that OCFS released “an Informational Letter (INF), 21-OCFS-INF-05 - Title IV-E Reimbursement for Legal Representation Services for Children and Parents in Child Welfare Proceedings. The INF sets forth the plan to distribute federal funding to the counties to support enhanced quality improvement measures for representing indigent parents involved in child protective/child welfare proceedings. It reflects the agreement between ILS and OCFS on the respective roles of each agency in this critically important initiative. OCFS is the New York State agency responsible for administering federal funding under Title IV-E of the Social Security Act, and will act as the fiscal claiming and pass-through agent for these funds, while ILS will work with the providers of mandated parental representation and county officials to develop three-year quality enhancement plans for using the funds.” The INF attachments are available on the OCFS website at https://ocfs.ny.gov/main/policies/external/#INF.

It remains to be seen how these funds will be distributed and how the money will be utilized, but NYSDA is hopeful that the money will be used to increase the budgets of family court defender offices, allowing them to hire more staff to lower caseloads and offer greater access to training, so that they can engage in timely and holistic representation of their clients.

On July 14, 2021, PBS News Hour shared an article, “Domestic violence survivors aren’t getting the reduced sentences they qualify for,” originally published by The 19th on July 9, 2021.The article addressed the apparent lack of meaningful impact a 2016 amendment to Illinois law had on achieving ameliorated sentences for abuse victims in criminal prosecutions. The article included remarks from Kate Skolnick, Supervising Attorney at the Center for Appellate Litigation, and Kate Mogulescu, Director of the Criminal Defense & Advocacy Clinic at Brooklyn Law School–both members of the Domestic Violence Survivors Justice Act (DVSJA) Statewide Task Force. They noted some of the obstacles that must be overcome in educating people in the legal system to understand how violence and victimization truly impact a person’s culpability in given situations involving alleged criminal behavior, and that as cases proceed through the criminal justice system under the 2019 DVSJA, it is realistically too soon to assess the impact of the law.

In the last issue of News Picks, we reported on the decision in People v Addimando, 2021 NY Slip Op 04364 (2nd Dept 2021), the first Appellate Division decision on direct appeal addressing the application of PL 60.12, the DVSJA sentencing guidelines, in a case where evidence of domestic violence was prevalent. The Second Department reversed the trial court’s denial of a sentencing under 60.12 and modified the judgment on the facts and in the interest of justice by reducing the sentence imposed outside the DVSJA sentencing guidelines.

This is an important decision, not just for future cases where a trial court is asked to impose a sentence under the 2019 DVJSA sentencing guidelines, but also for the myriad of resentencing cases that are moving through the courts now. Those cases can take advantage of the precedential value of the Second Department’s review of the various evidentiary considerations, including standards and burdens of proof, the definition of “significant contributing factor,” and assessing arguments of attenuation between past abuse and instant alleged criminal behavior.

For a review of recent DVSJA decisions and articles of interest, click here. NYSDA wishes to commend the lawyers on the Statewide Task Force, the Survivors Justice Project, and all practitioners doing the hard work in achieving the goals of the DVSJA. For further information about DVSJA cases, as well as other research and pleading materials, please contact NYSDA’s DVSJA Attorney Support Project, headed by Backup Center Senior Staff Attorney, Stephanie Batcheller, at [email protected]. Public resources on DVSJA practice can also be found at https://www.nysda.org/page/DVSJA.

Actions by police officers can affect the legal issues for clients with criminal cases and, too often, for clients with family law matters as well. To help assess such issues, lawyers need information about individual officers and departments, local trends and developments, and policing practices and outcomes more generally.

The repeal of Civil Rights Law 50-a to make police disciplinary records available continues to face pushback. As reported at lohud.com on July 27th, “at least 11 lawsuits have been filed from New York City to Buffalo seeking to clarify just how transparent police have to be” as police unions seek “to claw back access to records at the heart of the repeal movement” and keep member records out of view. Decisions have varied among courts. Unless and until there is “a definitive ruling from the Court of Appeals, individual agencies may feel emboldened to press forward with their own, similarly restrictive interpretations,” the article notes.

The use—or non-use—of disciplinary records extends beyond individual cases. The Long Island Press revealed on July 30, 2021, that 17 former New York (City) police officers hired to work in Nassau County had been accused of misconduct in over a 5-year period. One of the officers, named in a suit by a Black social worker for abusive policing and racial discrimination while at the NYPD, was said to be “‘no longer employed by the Nassau County Police Department,’” but no information about the status of the other 16 was made available. Activists are said to be calling for release of that status information and disciplinary records.

Disciplinary records are also being sought in Dutchess County, for comparison to state data indicating that in the county “there were 88 incidents within a 12-month period ending October 2020 in which a police officer used force against an individual,” according to an article in the Poughkeepsie Journal. The Journal submitted a Freedom of Information (FOIL) request to eight police departments last year, with varying results. The state data indicated that about half the incidents in question involved a person of color; the county population is about 70% white.

On a related note, Brooklyn District Attorney Eric Gonzales has released what a Gothamist.com headline called a "Massive Trove Of Internal Documents On NYPD Misconduct.” Consisting of prosecution letters to the defense about police conduct of potential impeachment value, the release was described as the biggest thus far of any such releases by prosecutors in the City, “and experts say it may be one of the largest across the country.” Embedded in the article is a searchable database of the letters. The documents are also available through MuckRock’s DocumentCloud service.

NYSDA works to keep current its Law Enforcement Disciplinary Records webpage. Information on local or other decisions and developments is welcome; email [email protected]. Also posted is information on FOILing law enforcement records. Attorneys with questions about FOIL can request materials from last December’s training.

An expose on vice.com says that in both Chicago, IL, and Rochester, NY, output from the gunshot-detecting surveillance system ShotSpotter was overridden by analysts, apparently at the behest of police. The New York case dates from 2016, and involved a police stop that ended with a passenger in the stopped vehicle being shot by police. Initial ShotSpotter output ruled sounds at the site to have come from helicopter rotors, but an analyst ruled after police contact that there had been four gunshots. As that total equaled the number of times police had fired, police asked the ShotSpotter employee to look further into it for additional shots, and a fifth shot was then found; the audio files then disappeared, according to filings in a civil suit. The Vice.com article also discusses a growing body of evidence that ShotSpotter has not led to a decrease in gun crimes. ShotSpotter was discussed in the May 28th edition of News Picks.

In May 2021, an “Initial Report on Innovative Community Initiatives“ appeared highlighting positive developments in the 11 months following the Governor’s issuance of Executive Order (EO) 203. EO 203 required all local governments in New York State with police departments to review them and develop a plan to improve them to address particular needs of communities served and to foster trust and address any racial bias. Participation of public defenders in this so-called collaborative effort was mandated; in the Sept. 30, 2020, edition of News Picks, NYSDA announced resources to assist, including creation of a Police Reform and Reinvention Collaborative webpage. While the May report offers a glowing assessment of the results, lauding “notable examples” of “creative and promising initiatives developed by localities through this collaborative process,” not all assessments are wholly laudatory.

A few municipalities failed to comply with the requirement to submit plans, as the report above and news sources show. For example, the Daily Gazette noted on May 2nd that the Village of Galway was one of those—and that the small Galway police department had experienced past problems including indictment of half the department in 2018 for falsifying records as to mandatory training. Given that increasing or improving training is a recurring part of submitted plans, indications that training is viewed as something to avoid may not bode well.

There is no doubt that much work must be done if “plans” are to have any concrete impact. And activists around the state are pointing that out and doing their work. The Center for Law and Justice, which posted on its website detailed responses to City of Albany’s working group recommendations, is now supporting creation of “a Public Safety Commission that decouples public safety from policing, centers community voices, and ends systemic racism.” In Saratoga Springs, a committee is studying the best way to create a public board to oversee the police, despite the misgiving of a majority of the City Council, according to a July 28th Times Union report. The news story noted that tensions between police and justice advocates in the city have been running high there, with police clashing with Black Lives Matter (BLM) protesters in the streets and even at Council meetings. BLM demands include establishment of a civilian review board, which the Council approved only “in principle” in the EO 203 plan it submitted.

Suffolk County criminal defense attorney Peter Mayer, whose background includes being a retired Supreme Court Justice and having had several roles in the District Attorney’s office, has written an article entitled “The Conflict Between Contempt and Zealous Advocacy.” Using one local case as an example, Mayer stresses lawyers’ duty to provide zealous advocacy for every client and calls for judicial respect for that duty. The article was published in the June 2021 edition of The Suffolk Lawyer and in the Spring/Summer 2021 issue of the New York Association of Criminal Defense Lawyer’s publication Atticus.

The line between advocacy and contempt is not new, of course, and presents challenges for appellate lawyers as well as trial attorneys. A New York Law Journal article nearly a decade ago used an appellate attorney’s response to a press inquiry about the appeal of his high-profile client, Hiram Monserrate, to examine instances when lawyers, including “the late heralded civil rights lawyer William Kunstler,” stood on—or crossed—the line. That article notes, among other authority, New York Rules of Professional Conduct, Rules 3.3(f)(2)(4) and 8.2(a). Mayer cites the American Bar Association Model Rules (see, Rule 1.3 Diligence – Comment). Defenders should also refer to standards issued by the NYS Indigent Legal Services Office, including trial standards, appellate standards, and standards for administering assigned counsel programs.

NYSDA presented the 2021 Jonathan E. Gradess Service of Justice Award to the Public Defense Community in recognition of efforts made by that community’s members on behalf of clients during the COVID-19 pandemic. NYSDA took the opportunity to name a small set of individual lawyers and defense offices to represent the many that inspired NYSDA during the coronavirus outbreak:

Also presented during the conference was the 2021 Kevin M. Andersen Memorial Award, given to Second Assistant Public Defender Arline L. Hanna of the Wayne County Public Defender Office. The Genesee County Public Defender Office created the award, which recognizes “an attorney who has been in practice less than fifteen years, practices in the area of indigent defense, and exemplifies the sense of justice, determination, and compassion” that were the hallmarks of its namesake.

NYSDA thanks the nearly 400 people who participated by Zoom in the events of the 54th Annual Meeting and Conference. Thanks are also due to the presenters at the conference—and all NYSDA CLE events, as well as to the NYSDA staff members who made it all happen. Questions about CLE credit, materials, or other issues regarding the conference or future CLEs can email [email protected].

Presented in conjunction with the National College for DUI Defense and the Ontario County Public Defender’s Office, this will be a hybrid program, which offers the option of attending live at the Finger Lakes Community College, in Canandaigua, NY, or online via Zoom Webinar. The program offers up to 7.0 CLE credit hours and presentations will include: If it Ain’t There, They Ain’t Got it: Productive Use of CPL § 245 with Edward Fiandach; What a Trial Lawyer Needs to Know About Pharmacology in a Cannabis DWAI Drug Case with Joseph Gerstenzang and Dr. Francis Gengo; Caselaw Update with Eric Sills; Crossing the DRE: From Preparation to Execution with John Leonard; Potent “Pot”-ables: How Officer Misconceptions About Cannabis Can Put Your Client in Jeopardy with Delton Caraway and John Sandle; and How to Impeach with Police Disciplinary Records with Brian Leeds and Mollie Dapolito. The program is free but pre-registration with selection of attendance option is required. Click here to register. Please contact [email protected] with any questions.

This all-day online training focused on family court custody cases will offer up to 6.5 CLE credits for $25. The program will cover topics including venue and jurisdiction; best interests; relocation; changing custody orders through litigation; extraordinary circumstances (non-parent custody and visitation); the role orders of protection, Article 10 proceedings, and indicated CPS reports play in custody determinations. The presenters are Jessica Anderson, Adele Fine, Mark Funk, Elizabeth Hendy, Rhian Jones, Amanda McHenry, Seana Sartori, Lisa Schoenfeld, and Tara Trammell. Complete program and registration information can be found here.