Bail: Implementation, Rollback Efforts Addressed
Three years after NYSDA celebrated bail reform in its 2019 Annual Report, defenders are dealing with some changes and continuing efforts to roll it back. Data is invoked in calls for gutting the reforms and in calls to maintain them. In the latter category is a July 31st article in Newsday that begins, “[i]n the second full year of bail reform in New York, new data shows the number of criminal defendants who are rearrested after being released remains relatively low — 1 out of 6 — and has ticked downward. “ A Buffalo News editorial likewise cautioned against further rollbacks, as did a Times Union editorial.
 
Central in recent pushback efforts was the release without bail of a person charged with attempted assault on gubernatorial candidate Lee Zeldin, discussed in the July 22nd issue of the New York Law Journal as well as here, here, and here. Questions raised include the specific charges filed in the case by the office of Monroe County District Attorney Sandra J. Doorley, said to be listed as a co-chair on Zeldin’s campaign committee. The Schenectady Daily Gazette noted, “[t]he new law had nothing to do with what happened, or could have happened, here. “
 
The Appeal pointed out, in a July 19th item, how “[p]ersonal narratives can help the public understand the benefits of bail reform, but telling these success stories presents its own share of challenges.” For busy defenders it is difficult to identify potential stories that would be helpful without posing risks to clients and then find the time to discuss with clients whether they might be willing to tell those stories. But when possible, defenders are encouraged to contact NYSDA about stories that can be told in support of maintaining bail reform. Email info@nysda.org.
 
State leaders, including Assembly Speaker Carl Heastie, are being pressured by NYC Mayor Eric Adams, as noted in the New York Post here. The New York Daily News joined the rollback fray in a somewhat calmer tone, saying state leaders need to go further than the 2022 changes. A bright spot was Gov. Kathy Hochul’s comments, reported at PoliticsNY.com, that the existing law gives judges “‘the tools they need to work toward our common objective of increasing public safety,’” without adding the “dangerousness standard” being pushed by Adams.
 
Training on Bail Law Offered at Annual Conference
Changes to the bail law passed as part of the budget legislation in early April and reported in the April 13th edition of News Picks were among the topics covered in training during NYSDA’s Annual Conference. Among aspects touched on was CPL 500.10(3-c), voluntary and involuntary mental health assessments added as possible non-monetary conditions of release. The Backup Center welcomes questions and information about how these or other aspects of the newest bail provisions are being implemented.
 
Court Orders Assigned Counsel Rates Raised for First Time Since 2004
In late July, Supreme Court Justice Lisa Headley granted an interim preliminary injunction in the assigned counsel compensation lawsuit brought by the New York County Lawyers Association, the Assigned Counsel Association of New York State, and other bar associations against New York City and the State. The injunction raises rates from $75 to $158 an hour, retroactive from February 2022. It is the first assigned counsel pay increase since 2004.
 
Justice Headley’s decision finds that the plaintiffs established a likelihood of success on the merits, based primarily on the Court’s prior decision to grant injunctive relief in a similar suit in 2003. The court also found that without the preliminary injunction, “children and indigent adults would suffer severe and irreparable harm that is ‘imminent, not remote or speculative.’” [Citations omitted.] The court went on to find that: “the quality of legal representation for children and indigent adults, as well as their due process rights would continue to decline without a preliminary injunction … [and] it is certain that a decrease in the number of assigned counsel leads to an already overburdened assigned attorney having to assume an increased workload … the overburdened workload affects the quality and time an assigned counsel spends on each child litigant or indigent adult’s case.”
 
For now, the decision only changes rates for assigned counsel in the City. However, the hope is that the decision leads to increases throughout the state. Onondaga County Assigned Counsel Director Kathleen Dougherty told Syracuse.com: “This is exactly how the proceedings progressed in 2003… [f]irst, the court ordered an increased rate for NYC cases; then, the Legislature enacted and the Governor signed new legislation increasing the rates statewide. We are hopeful that the same model will be followed this year. “
 
State Senator Brad Hoylman, chair of the judiciary committee, told the New York Law Journal that he hopes the decision “is the impetus for the legislature next year … [to] get this raise statewide.” Hoylman made specific reference to State Senator Jamaal Bailey’s bill from last session.
 
For more background on the lawsuit, please refer to the July 6th edition of News Picks.
 
Good 245.20 Decisions Out of the Bronx
In People v Francis, Bronx Criminal Court Judge Wanda L. Licitra found that photographs taken by the NYPD at the scene of the alleged offense count as material subject to automatic discovery under CPL § 245.20(2): “The People conflate whether an item is ‘relevant to the charges’ with the discovery standard of whether an item ‘relate[s] to the subject matter of the case.’ …. The discovery statute does not ask the People to unilaterally determine what they believe would be ‘relevant to the charges.’” 2022 NY Slip Op 50655(U), at *4. [Citations omitted.]
 
In another decision, People v Vargas, Judge Licitra makes a key distinction in the growing certificate of compliance jurisprudence. In the prosecution’s response to the defendant’s motion to dismiss, they argued that even if they had failed to disclose discovery under CPL 245.20(1), their certificate of compliance (CoC) was filed properly because it was filed “in good faith after ... due diligence. “ While the decision notes that “the statute mentions these concepts as necessary conditions to a proper COC,” it goes on to note that “[t]he People’s fundamental error is that they mistake these necessary conditions to each be sufficient for a proper COC.” 2022 NY Slip Op 22227, at *2.
 
Second Department Upholds Dismissal of Family Offense Petitions
In a decision upholding the dismissal of two family offense petitions, one for failure to state a cause of action, and the other for lack of subject matter jurisdiction, the Second Department reminds us of the importance of good motion practice and being familiar with the statute that your client’s case is based on. In Matter of Uzamere v Idehen (2022 NY Slip Op 04729 [July 27, 2022]), the respondents had their cases dismissed before trial, saving them the time, money, and resources that would have been unnecessarily expended by going to trial.
 
Importantly, this case highlights that not all charges can be brought in family court. “The Family Court is a court of limited jurisdiction, and thus, it ‘cannot exercise powers beyond those granted to it by statute’ (Matter of Johna M.S. v Russell E.S., 10 NY3d 364, 366, 859; see NY Const, art VI, § 13; Family Ct Act § 115). Pursuant to Family Court Act § 812(1)(e), the Family Court’s jurisdiction in family offense proceedings is limited to certain proscribed criminal acts that occur ‘between spouses or former spouses, or between parent and child or between members of the same family or household.’ The definition of ‘members of the same family or household’ includes ‘persons who are not related by consanguinity or affinity and who are or have been in an intimate relationship.’ Expressly excluded from the definition of ‘intimate relationship’ are ‘casual acquaintance[s]’ and ‘ordinary fraternization between two individuals in business or social contexts’ ….”
 
NYSDA encourages defenders to familiarize themselves with the law cited in Matter of Uzamere and FCA Article 8, including FCA 821, which discusses the requirements for originating a family offense petition, including the specific list of crimes that constitute a family offense. You can find sample motions, including a motion to dismiss a family offense petition, on NYSDA’s family court resource page. Those seeking additional information and training materials on orders of protection, either petitioning or defending, can contact Family Court Staff Attorney, Kim Bode, at kbode@nysda.org.
 
Public Service Loan Forgiveness Program Waiver- Apply Before Oct. 31, 2022
News Picks has featured updates on the federal Public Service Loan Forgiveness Program for a number of years. Most recently, we provided an update from the Education Debt Consumer Assistance Program (EDCAP) in the May 3rd edition. EDCAP and several other organizations have launched PSLF.nyc, a helpful resource for those who may be eligible for PSLF.
 
From PSLF.nyc: For 14 years the Public Service Loan Forgiveness (PSLF) program was broken. But with the PSLF Waiver we finally now have the loan forgiveness program we always needed. And it expires October 31, 2022. The PSLF Waiver is real, it’s worth a lot of money, and it’s urgent.
If you tried before and were rejected - try again.
If you think you didn’t qualify in the past, things have changed - it’s worth trying.
IMPORTANT: Even if you have fewer than 10 years of public service, you must apply during the Waiver period before October 31, 2022 to ensure you are not set to Zero credits on November 1.
Ready to try? What are you waiting for! The PSLF application starts at the government’s own website - so they already have all your personal information, and it only takes 30 minutes to get started.  
 
Shotspotter Developments
In a legal maneuver to avoid being compelled to release documents about how it assesses alerts, the gunshot-detection technology company ShotSpotter successfully asked a judge in an Illinois criminal case to hold it in contempt. This would trigger an appeal, while a discovery order to disclose the information could not be appealed before final judgment, according to a July 26th item in the Chicago Reader. Several days earlier the Surveillance Technology Oversight Project (STOP) issued a report, “ShotSpotter and the Misfires of Gunshot Detection Technology," highly critical of the high-tech tool. The Executive Summary concludes:
  • U.S. cities are squandering money on ShotSpotter’s unproven gunshot surveillance technology.
  • ShotSpotter surveillance increases police activity, but it wastes officers’ time. One major study of the technology showed that ShotSpotter fails as an investigative tool, providing no evidence of a gun-related crime more than 90% of the time and producing exceedingly few arrests (less than 1 per 200 stops) and recovered guns (less than 1 per 300 stops).
  • ShotSpotter fails the Black and Latinx communities where it appears to be disproportionately deployed. The tool increases police activity and the risk of police violence without producing any significant effect on firearm offenses or on shooting victims’ medical outcomes. [Footnotes omitted.]
 
Days before that, a class action complaint was filed in federal court in Illinois against the City of Chicago and various members of the Chicago Police Department, for their use of ShotSpotter. Filed by the Roderick & Solange MacArthur Justice Center at Northwestern University’s law school, the complaint seeks declaratory and injunctive relief, damages, and any other relief deemed just and proper. The suit is touted on the Center’s End Police Surveillance webpage, with a request that “[i]f you think you may have been stopped by CPD because of ShotSpotter, contact us. “ Added coverage, from AP News, here, and Gizmodo, here.
 
Information on ShotSpotter was included in the February 28th edition of News Picks, which noted its use by the New York Police Department. Such use is embedded in the NYPD manual, which requires body-worn cameras to be activated before responding to a ShotSpotter activation.
 
Kassin: Brooklyn Exonerations Illustrate False Confession Issue
False confession expert Saul Kassin writes in the New York Law Journal that the Brooklyn exoneration of three men convicted for the 1995 fatal burning of a subway token collector illustrates the need to record interrogations. Pointing out the enormous holes in the confessions of the three teenagers who were wrongly convicted, Kassin notes that once those questionable statements had been taken, efforts to find men initially believed to be involved stopped. He faults police, prosecutors, and the courts, “which repeatedly fail to serve as a safety net in cases involving coerced false confessions.” The Municipal Police Training Council developed a Model Policy on Recording of Custodial Interrogations (June 2018), which is available on the NYS Division of Criminal Justice Services’ website here.
 
Kassin’s article does not discuss the need for a well-resourced defense to reveal false confessions. NYSDA works to equip defense lawyers for that challenge. False confession issues such as expert testimony regarding them are noted in NYSDA publications. See for example the Sept.-Dec. 2021 issue of the Backup Center REPORT reporting on People v Powell (37 NY3d 476 [11/18/2021]). The particular susceptibility of people with certain characteristics to interrogation techniques producing false confessions has been noted in NYSDA training. Most recently, materials from the CLE session “Representing Clients on the Autism Spectrum,” presented by Mark J. Mahoney at the Annual Conference, noted that “[i]n any case of a police interview of the accused with ASD [autism spectrum disorder] it is necessary to evaluate the result from the perspective of autism.”
 
Solicitation of Candidates for Chief Judge is Underway; NYSDA Encourages Candidates with Public Defense Experience to Apply 
The Commission on Judicial Nomination has posted a notice of Chief Judge Vacancy. “When a vacancy on the Court of Appeals occurs or is known to be imminent, the Commission broadly solicits applications from candidates who reflect the diversity of the citizenry of the State of New York, and then considers all interested candidates.”
 
The solicitation provides instructions for applying. To obtain an application, please follow this link, where you can download a PDF after entering your name and email address. Applications may be filed electronically by e-mailing them to CJN_Applications@gtlaw.com or submitted by mail to the Commission’s Counsel. Applications are due to the Commission no later than August 29, 2022.
 
The selection of New York’s next Chief Judge has broad implications for years to come. City and State recently reported on How New York’s highest court has veered right. When surveying decisions, it is clear that a defense minded jurist is necessary on the bench who has experience working with clients in public defense. A Times Union editorial urges Governor Hochul to “call it on the side of the progressive values New York has long stood for.”
 
NYSDA’s Executive Director Susan Bryant was quoted in the Times Union regarding the selection of the next Chief Judge. “We don’t see a public defense perspective on the court right now. “ “The traditional pathway is prosecutors moving into judgeships, and much less so defenders,” Bryant said. “But there’s been a movement . . . to really have the perspective of people who have represented individual clients -- and have represented people who have been most impacted by the criminal legal system -- be among the decision-makers as to individual cases as well as the court system as a whole.”
 
A Judge Says Shaken-Baby Cases Rely on “Junk Science”
Reported by Reason.com, was a New Jersey decision from January 2022, where the court would not allow the admissibility of testimony in a “shaken baby” case. The court’s opinion discusses the dangers of allowing evidence that could be misleading, inaccurate, and speculative leading to false convictions. The case was covered earlier by The Appeal in May: “A Judge Finally Called BS in a Shaken Baby Syndrome." NYSDA reported on the New Jersey case and other SBS/AHT matters in the Jan.-May 2022 issue of the REPORT and the May 19th edition of News Picks.
 
ILS Announces Second Family Defense Quality Improvement & Caseload Reduction RFP
In another small but important step towards infusing more money into woefully underfunded offices that provide representation to parents in family court mandated representation cases, the NYS Office of Indigent Legal Services (ILS) has announced a request for proposals for the Second Upstate Family Defense (Child Welfare) Quality Improvement & Caseload Reduction Grant. The first grant was distributed late last year, to Cortland, Erie, Monroe, Steuben, and Suffolk counties. Those five counties were awarded up to $500,000 over a three-year period. As with the first grant, “[t]he intent of this Request for Proposals (RFP) is to support local initiatives aimed at improving the quality of legal representation provided to parents in child protective matters as defined in Family Court Act Article 10. Quality legal representation for parents in these proceedings is of heightened importance since the individuals targeted are disproportionately poor, Black, and Indigenous, and typically lack the information, resources, and social capital necessary to respond effectively to government action that often includes temporary or permanent removal of a child from the parent. Improvements in this area will also promote better Family Court decision making, reduce the needless separation of children from their families, save foster care costs, diminish disparate racial impacts, and reduce long-term costs to the state and to counties.“
 
This RFP is available only to those counties that are outside of New York City and the maximum award to any one county is $750,000 over three years, representing a raise from last year’s RFP due to an increase in Family Court funding from the NYS. The full RFP announcement with requirements and deadlines can be found here. RFP applications are due no later than Sept. 14, 2022, at 5:00 pm. Those with questions about the grant should contact ILS using the contact information in the RFP.



Association News


NYSDA Welcomes New Staff Attorney Lucy Larkins to the Discovery & Forensic Support Unit of the Backup Center
Lucy Larkins has joined our NYSDA team this week. Beyond her advocacy work in New York, Lucy has experience working as a public defender in a variety of jurisdictions, including Maryland and California, as well as providing resources and support to capital defenders in Louisiana. She holds her LLM from New York University School of Law and her law degree from the University of Melbourne Law School. Welcome, Lucy!
 
NYSDA is Hiring!
NYSDA recently announced the availability of two new positions. We are seeking a Discovery and Digital Evidence Specialist for our new statewide defender Discovery & Forensic Support Unit. And our Veterans Defense Program is seeking a Veterans Case Manager. Both postings are available here.
 
55th Annual Conference Highlights
July 24 - 26th saw greetings between colleagues not seen in Saratoga since 2019, highly relevant and warmly-praised CLE presentations, and recognition of inspiring public defenders during NYSDA’s Annual Conference. NYSDA thanks all those who presented and all those who attended, both in person and online!
 
NYSDA Honored Tim Murphy and Lorraine McEvilley
Lorraine McEvilley, Director of The Parole Revocation Defense Unit at The Legal Aid Society, Criminal Defense Practice, in New York City received the Jonathan E. Gradess Service of Justice Award. Media release here. Timothy P. Murphy, Assistant Federal Public Defender – Appellate Unit at the Federal Public Defender’s Office for the Western District of NY receives the Wilfred R. O’Connor Award. Media release here.
 
Genesee County Public Defender’s Office Recognized Jonathan Rothermel
As is traditional, and noted in a media release here, the Genesee County Public Defender’s Office presented its Kevin M. Andersen Memorial Award during NYSDA’s conference. This year’s recipient was Jonathan Rothermel.
 
VDP Lawyers to Present NAPD Program
NYSDA’s Veterans Defense Program (VDP) Director Gary A. Horton and Deputy Director Roy M. Diehl will present “How to Develop Mitigation for the Veteran Client" to a national audience on Aug. 23, 2022, at 1:30 pm EDT. The webinar is sponsored by the National Association for Public Defense (NAPD).
 
Friday, August 19, 2022: 6th Annual DWI Master Class: Drug Edition: The DWAI Drugs Trial in 2022
Co-sponsored by the National College for DUI Defense and the Ontario County Defender’s Office, this full-day hybrid program will be held live at the Finger Lakes Community College in Canandaigua, NY, and available for virtual attendance via Zoom. The program will include Gas Chromatography and Reverse Extrapolation with Edward Fiandach; What Defense Counsel Needs to Know About Clinical Pharmacology in Impaired Driving Cases with Joseph Gerstenzang and Dr. Anna Mattle; Using CPL § 245.20 to Drive Your Case Out of the Park with Lisa Saltzman; Voir Dire for Lawyers Who Hate Jury Selection with John Leonard; Cross-Examination of the Arresting Officer (not DRE) at the Pre-trial Hearing with Jonathan Cohn; Don’t Let the Prosecutor Drive the Bus! Shifting Gears with Your Theory of Innocence with Delton Caraway; and Dismantling the DRE – Cross-Examination of the DRE Officer with Michelle Behan. Details and registration information are available here.
 
Friday, September 30, 2022: Stepping It Up: Strategies for Successful Family Defense at Syracuse University School of Law
This all-day family defense training program will focus on various aspects of family court parental representation, including cross-examination skills, how to conduct a permanency planning hearing, the effects of marijuana legalization on family court practice, and best practices for representing clients who are not present in court. Joyce McMillian, Founder and Executive Director of JMacForFamilies, will give a special keynote address (available to in-person attendees only). The full schedule and registration is available here. This program will be available in person and online. Registration: $50 for Zoom participation; $90 for in person.
 
Hotel accommodations for September 29: A special rate of $129 is available at the Collegian Hotel & Suites, Trademark Collection by Wyndham, which is a mile from the College of Law. To book a room, click here.
 
Questions? Please contact NYSDA’s Family Court Staff Attorney, Kim Bode, at kbode@nysda.org or training@nysda.org.