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Wayne County Dismissal After Plea of Guilty, Non-Compliance with CPL 245
On Aug. 18, 2022, the county court dismissed the charges in People v Clement. The court noted that the prosecution failed to provide any explanation for its failure to produce bodycam footage and rejected the prosecution’s argument that the defense failed to show prejudice when they were not provided timely discovery, citing People v Lawrence, 64 NY2d 200, 205 (1984). “The statutory right to dismissal against a defendant if the prosecutor is not ready for trial … is based upon policy reasons and does not require consideration of prejudice to defendant.” We encourage defenders to share decisions and pleadings related to discovery and speedy trial with our Public Defense Backup Center by emailing them to info@nysda.org.
Judge Cannataro Named Acting Chief as We Await Nomination of Next Chief Judge
It was reported by Law360 and the New York Law Journal on August 24th that Associate Judge Anthony Cannataro will be named as Acting Chief Judge. As we await the nomination of New York’s next Chief Judge, the New York Law Journal published an article this week about the pattern of decisions in criminal cases. “The Court decided only 46 criminal cases, of which 29 were memorandum decisions—short, unsigned opinions, often followed by lengthy (and sometimes sharp) dissents. Judges Rivera and Wilson were frequent dissenters: Judge Rivera dissented in 15 cases and Judge Wilson in 17; typically, they dissented together. Chief Judge DiFiore and Judges Garcia, Singas and Cannataro were in the majority in every case. No new rights were created; indeed, many of the cases were of little interest to anyone but the parties.” Cannataro is recognized as one of the conservative judges amongst the group. An August 29th post on NYFocus.com reported questions as to whether the voting process on Cannataro's selection met statutory requirements.
Senator Alessandra Biaggi wrote an Opinion published in the Times Union urging the nomination of a judge who can balance the court. “Recently, appointees to the court have not reflected the professional diversity of New Yorkers. The court currently counts a majority of former prosecutors, without a single lawyer who made their career in public defense or civil rights litigation. Unsurprisingly, this bloc of former prosecutors has deprioritized the needs of communities of color and low-income New Yorkers. Hochul now has a critical opportunity to begin to rebalance the court following DiFiore’s retirement.”
NYSDA Speaks Out with Coalition
NYSDA signed onto a joint letter insisting the next Chief Judge should not be a former prosecutor, which was covered by City and State NY. Language from the letter was referenced, “[w]e urge you to nominate a thoughtful, principled lawyer who will safeguard New Yorkers’ rights, bring independence and a demonstrated appreciation for the law’s power to protect the most vulnerable, and defend our democracy in the challenging years ahead.”
State Using Red Flag Laws More
According to the office of Governor Hochul, state law enforcement use of Extreme Risk Protection Orders (ERPO) under New York’s Red Flag Law is at an all-time high. From August 2019 to April 2022, only 1,424 ERPOs were issued, as opposed to 832 between May and August of 2022. Suffolk County has been particularly aggressive in their use of ERPOs, filing 184 red flag applications since May 2022 as opposed to 95 orders in all of 2021.
For more information, see the Governor’s press release here, and coverage from the Observer-Dispatch and The New York Times. Sherry Levin Wallach, Deputy Executive Director of the Legal Aid Society of Westchester County and President of the New York State Bar Association, published a critique of the red flag laws in LoHud in July. Of particular concern is that there is no specific right to counsel in an ERPO proceeding, which is civil in nature. However, for individuals who are represented by counsel in a pending criminal or family court proceeding, counsel may represent the client in the ERPO matter.
Conscientious Representation Results in Compassionate DVSJA Sentence
The 2019 Domestic Violence Survivors Justice Act (DVSJA) established a new ameliorative sentencing scheme for individuals who can establish that they were victims of domestic violence at the time of the offense and that the abuse was a significant contributing factor to the person’s participation in the criminal behavior. The sentencing benefit can be achieved in one of two ways: individuals sentenced prior to the passage of the statute can apply for a resentencing using CPL 440.47; individuals facing prosecutions and sentencing on cases pending and brought after the statute went into effect can seek sentencing under Penal Law 60.12. A guide to DVSJA practice created by the Survivors Justice Project can be accessed from the NYSDA’s DVSJA Resources page.
Lawyers in a recent Onondaga County case achieved remarkable results under the statute on Aug. 4, 2022, when they persuaded the court to impose a compassionate sentence in a case involving a woman who killed her abusive partner by running him over with her vehicle. A report about the case and the judge facing “one of the hardest questions of his long career” can be found here.
A detailed description of the investigation and how the evidence was presented to the court can be found in the August 8, 2022, issue of the Onondaga County Bar Association Assigned Counsel Program weekly newsletter.
New York City Files Notice of Appeal in Assigned Counsel Fee Litigation
New York City has filed a notice of appeal of the decision and order granting a preliminary injunction increasing assigned counsel fees. As reported in the Aug. 10th edition of News Picks, Supreme Court Justice Lisa Headley granted the 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. New York City is challenging the decision and order in its entirety and is also challenging the ruling to the extent that it directed payment of the increased rate retroactive to Feb. 2, 2022.
Challenge to NJ Law Enforcement Subpoena of Newborn Genetic Info
As reported by Wired on Aug. 15, 2022, the New Jersey Office of the Public Defender and the New Jersey Monitor filed a public records lawsuit alleging that state police sought from the New Jersey Department of Health a blood sample that had been taken from a newborn nearly a decade earlier “to investigate the child’s father in connection with a sexual assault from the 1990s.” The suit asserts that the sample was sought because law enforcement lacked probable cause to obtain samples from people suspected in the cold case, and that a search warrant should have been required for the stored newborn sample.
New York has a Newborn Screening Program. Wired cited a 2022 Texas Law Review article that analyzed state policies as to screening programs like the one at issue in New Jersey. It says that New York’s statute governing genetic data permits nonconsensual disclosure “as provided in an order of a court of competent jurisdiction,” citing Civil Rights Law 79-l(4)(c). That statute in turn refers to Public Health Law 2500-a regarding tests of infants.
This current issue is a variant of the familial DNA search issues discussed in the Jan.-May 2022 issue of the Backup Center REPORT. It included reference to the May 19th edition of News Picks reporting on a case striking down regulations on familial searches of the NYS databank. NYSDA is on record opposing such searches.
ABA Resolution Urges More Education on Combatting Racism in the Child Welfare System
The American Bar Association (ABA) adopted a resolution and issued a report to address the systemic racism that runs rampant through the family regulatory system. As noted in the summary of the resolution: “This [R]esolution calls on Bar Associations throughout the country to educate attorneys and other legal professionals on how the experience of separating Black children from their parents in the child welfare system is intimately linked to the history of slavery in our country as well as subsequent approaches to over-surveillance of and underinvestment in Black families. With an understanding of this history, the Resolution also urges judges, attorneys, legislators, and other legal professionals to challenge present-day laws that have devalued Black families and resulted in the separation of Black parents from their children. Further, the Resolution urges the legal profession to recognize the inherent strength of Black families, to value Black cultural and ethnic identity tied to race, and to follow the lead of Black parents, children, and kin with lived experience in taking constructive steps to end the legacy of family separation and design a public approach to family support that best meets children and parents’ needs in the future.” NYSDA supports this resolution and is committed to providing education and social awareness on racism in the child welfare system, as we have previously with programs such as Litigating in Color, as well as working with other bar associations in New York and around the country on this critical issue.
JMACForFamilies and PLAN Launch Public Service Announcement
“Families Belong Together. Know your rights if ACS knocks.” This message appears on the sides of 48 buses throughout the Bronx and Harlem, thanks to JMacForFamilies and the Parental Legislative Action Network (PLAN). The goal is to educate people who find themselves the subject of an ACS/CPS investigation. Visit JMacForFamilies.org/plan to learn more about your rights and for info on free legal services in NYC. Joyce McMillan is the Founder and Executive Director of JMacForFamilies and the Founder of PLAN.
988 Suicide and Crisis Lifeline Now Operational
In July, the new national 988 Suicide and Crisis Lifeline was rolled out. Its history is recounted briefly in a post on the Federal Communications Commission website. Officials like NYS Office of Mental Health Commissioner Ann Sullivan spoke optimistically about the new service; an interview with her aired on Capitalpressroom.org. Sullivan’s language indicated that it is when callers themselves feel they need more help that they are given a “warm handoff”—a referral—or the call is referred to bring someone to the scene. However, concerns exist.
As an article on Government Executive set out, “[s]ome advocates and people who had experiences with the mental health system took to social media to voice concerns about 988 and warn people not to call it.” The article discussed the concern that police will respond to crisis calls, with fatal results. An official insisted that emergency services will be called “[o]nly when the caller cannot or will not collaborate on a safety plan and the counselor feels the caller will harm themselves imminently” and noted that emergency services may be mobile crisis teams, but it was acknowledged that “in many rural and suburban communities,” the response would be by police. The article concluded that whether or not to use 988 “depends,” and listed a number of other hotlines and resources.
Other discussions about the new hotline include: a Wired item; a New York Family post stressing the alternative of NYC Well for those in the City; a WSKG.org report focusing on Southern Tier counties; a WBFO piece noting that in Erie County, the entity participating in the 988 network has its own mobile crisis unit that can be dispatched; and a Military Times account that noted “[v]eterans who call the new 988 hotline or the old 1-800-273-8255 number can select option 1 after connecting to reach a VA staffer. In addition, Veterans, troops or their family members can also text 838255 or visit VeteransCrisisLine.net for assistance.”
As the CEO of NAMI [National Alliance on Mental Illness] has said on their website, “‘[t]he nationwide availability of 988 is an important step forward, but the work to reimagine crisis response is just beginning.’” In New York, requests for proposals for the creation of crisis stabilization centers announced early in July are hoped to be one step toward improving the overall availability of mental health crisis services.
Defenders are encouraged to let NYSDA know how the 988 hotline and other crisis services are working in their area—info@nysda.org or 518-465-3524. We continue to advocate for non-criminalizing, non-carceral approaches to situations involving people with mental illness, substance use disorders, and similar challenges.
Wrongful Convictions Op-Ed in the Daily News
Andrea Nieves, Senior Policy Attorney at New York County Defender Services, published an op-ed in the New York Daily News, “The right answer to N.Y.’s wrongful convictions.” The op-ed highlights two bills — A98A (Quart) in the Assembly and S266A (Myrie) in the Senate — which would remove the guilty plea bar to actual innocence claims where there is new, non-DNA evidence of wrongful conviction. The bills would also provide post-conviction discovery.
Packages for People Incarcerated in NY Prisons Restricted
An August 15th article in the Long Island Press (LIP) reported that the Department of Corrections and Community Supervision (DOCCS) will no longer allow people in New York State prisons to receive packages other than those sent directly from third-party vendors. No more family-prepared food. Higher costs for families who want to send items that many rely on for a healthy diet and appropriate toiletries. The May 19th edition of News Picks noted the (re)launch of package restrictions, which were initially introduced in January 2018 but halted. The DOCCS website includes the existing package rule, Directive 4911, a summary of the new package policy, and a draft version of a revised Directive 4911.
The LIP article also reported that “[s]tarting this month, the state prison system is also testing a program where inmates will be blocked from getting most letters sent on paper ….” Like the package restriction, the policy is said to be aimed at blocking contraband, including drug-soaked paper. But the policies also add to the many stresses experienced by people in prison and restrict the ability of family and friends outside to meaningfully assist them.
Meanwhile, mail and package policies in local jails also provide barriers to contact and assistance. Some are posted online (assuming they are current), like the policies for acceptable packages in the Westchester County facility.
Commission to Reimagine the Future of New York’s Courts to Hold Two Public Hearings
The Pandemic Practices Working Group of the Commission to Reimagine the Future of New York’s Courts has announced two upcoming public hearings, one on October 6th in Buffalo and one on October 31st in New York City. Requests to present oral testimony must be received by September 12th for the Buffalo hearing and October 7th for the New York City hearing. The deadline for submitting written statements is Nov. 7, 2022. NYSDA offered testimony in the afternoon at the June 7th hearing. Video and transcripts of that hearing are available on the Commission’s Public Hearings page.
New CLE Category
The New York State Continuing Legal Education Program added a new category called “Cybersecurity, Privacy and Data Protection.” Beginning on July 1, 2023, both newly admitted and experienced attorneys must complete at least one (1) CLE credit hour in the new category.
Topics in the new category include “cyber threats, cyberattacks, data breaches, the importance of securing and protecting electronic data and communication, appropriate cybersecurity and privacy policies and protocols, and compliance with professional and ethical obligations to protect confidential client and law firm data.”
For more information on what these terms constitute, including definitions, the amended rules are here. NYSDA plans to offer training programs that fit into this new CLE category in the future.
Association News
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 the training unit at training@nysda.org.
NYSDA is Growing! Come join our team. Job postings for our statewide Discovery & Forensic Support Unit and Veterans Defense Program are available on our website at https://www.nysda.org/page/NYSDAJobs.
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