New Database of New York Police Disciplinary Records
The USA Today Network news organizations in New York State have created a searchable database of police disciplinary records for police departments around the state. According to the website: “Police disciplinary records previously protected under Section 50a of the state Civil Rights Law are now subject to Freedom of Information requests after legislation was passed in June 2020. Some agencies in the state have not fulfilled requests for access to those records and may not return a result in search. We continue to update this database as those records are released. This database uses records acquired under New York’s Freedom of Information laws along with those collated from records available on some New York police department websites. Our analysis has shown that some publicly available records are incomplete and omit reference to serious reported incidents.” More coverage of the release can be found in the Star Gazette, and in a series of reports by the Democrat and Chronicle, on December 6th and including their report on “How journalists used NY police disciplinary files in investigations.”
 
NYSDA’s website includes a Law Enforcement Disciplinary Records resource page with links to the various searchable databases, included the one launched this week.
 
DOJ Announces Civil Rights Investigation into Mount Vernon Police Department
On December 3rd, the Southern District U.S. Attorney’s Office and the Department of Justice’s Civil Rights Division announced a “pattern-or-practice“ investigation into the Mount Vernon Police Department (MVPD). The focus will be on discriminatory policing, including evidence collection, use of force, and strip and body cavity searches. MVPD has been the focus of a number of excessive force investigations over the last several years, including allegations of brutality, evidence planting, and illegal strip searches. For more, see the DOJ Press Release and coverage in Gothamist.
 
Courts Join Pressure to Limit Discovery Reform
Efforts by many prosecutors and law enforcement to thwart discovery reforms appear to have been joined by the court system. The Gothamist reported on November 30th that the supervising judge of Brooklyn’s criminal court has “issued a controversial court order on Monday that could push defense attorneys to waive their right to challenge prosecutors’ failure to turn over evidence in the latter stages of a case.” While court officials said the pilot initiative launched by the order “is intended to cut down on delays spurred by the landmark discovery reforms,” defense attorneys were saying that it “undermines lawmakers’ efforts to ensure people facing criminal charges are not kept in the dark about key evidence in their cases.” Defense attorneys were criticized by Office of Court Administration spokesperson Lucian Chalfen, who described the new order as “‘an effort to cut down on the crushing motion practice that has been occurring after the district attorney files his Certificate of Compliance,” and added, [[t]he result is a pile of motions. The parties are supposed to try and work out discovery differences but, neither alacrity nor flexibility has been a defense bar characteristic’ ….”
 
A follow-up article noted additional dissatisfaction with the order: “‘[t]he law is very explicit,’ said Joseph Lentol, a former Brooklyn assemblyman who crafted and fought for the legislation for years. That’s what needs to be followed, not the dictates of a human being so that the intent of discovery could be thwarted.’” Lentol is a member of NYSDA’s Board of Directors.
 
The supposed “crushing motion practice” around discovery received only sparse mention in the Division of Criminal Justice Services report on discovery noted in the November 12th edition of News Picks. The report said at page 5 that “some” responding district attorneys “noted an increase in litigation related to discovery compliance.” And litigation would not be necessary if prosecutors met the discovery law requirements. This is discussed in the Memorandum filed by amici, including NYSDA, in Second Department discovery litigation initiated by the Suffolk County District Attorney as reported in the October 28th edition of News Picks. Information on the number of times discovery sanctions have been imposed on prosecutors in New York City, to be compiled under recently-passed local legislation noted in the last News Picks edition, may prove instructive.
 
Updates on the Assigned Counsel Compensation Suit
In September, the New York County Lawyers Association (NYCLA), in conjunction with a number of other bar associations and the firm Kramer Levin, filed suit against New York City and the State of New York regarding the rates private attorneys are compensated for representing public defense clients. The amended complaint asserts that by failing to increase compensation for over 17 years, the City and State have failed to meet their obligation to ensure the constitutional right to meaningful and effective legal representation for public defense clients in “family and criminal court proceedings at the trial and appellate levels in New York City.” In November, both Corporation Counsel and the Attorney General’s office responded to the complaint, neither of which included a motion to dismiss or contested standing.
 
Lawsuits addressing rates provided weight in the last fight for a legislative fee increase, as recounted in a column in the May-June 2002 REPORT (p 13), and as noted in a recent article in The Imprint that highlighted representation in family matters. “The state ultimately raised compensation after the courts found that resistance to increasing attorneys’ rates had a ripple effect on clients, ‘failing to instill confidence and reliability in our system of justice,’” the article noted. NYSDA, the New York State Bar Association, and many other organizations, are including a statutory rate hike and provision for adjusting the rates as circumstances change in their legislative priorities for the upcoming legislative session. It is critical that legislators and the public understand the crucial role of assigned counsel and also understand that per hour compensation is not salary but, rather, must cover lawyers’ overhead costs as well as their own livelihood. As costs escalate, the current rates of $60/hour (for misdemeanors) and $75 (for all other matters in which representation is mandated), set in County Law 722-b, make it less and less possible for attorneys to accept appointment for eligible clients.
 
“Shadow Foster Care” Criticized, Host Family Regulations Adopted
A collaboration between ProPublica and the New York Times produced a powerful article on the “shadow foster care system.” It is a heartbreaking story of what can happen to children when the agency tasked to care for the welfare of children completely shirks it responsibilities. The story focuses on two sisters, Molly and Heaven, who, after the sudden death of their mother, were effectively dropped off in two different locations to continue their lives apart. “It would take years before Molly and Heaven would learn that neither of them was ever in the foster system. Instead, caseworkers had diverted them to what some scholars call ‘hidden foster care’ or ‘shadow foster care,’ in which the legal protections of the formal system disappear.”
 
The article continues, “unlike the foster system, the shadow system is not designed to support … children. The government isn’t required to ensure the safety of placements with the thorough home visits and health screenings that federal law requires with foster care.” Relatives or family friends who take children into their homes, often under pressure, don’t receive funding for their care and often not even “the legal authority to enroll them in school or take them to a doctor.” When departments close these cases, any assistance that child welfare workers might provide ends, as does monitoring of the children. “[I]t’s impossible to know what happens to them while no one is watching.” The authors describe the shockingly different paths the sisters were provided by this shadow system, and the lingering unfairness that resulted.
 
While this case happened in North Carolina, many worry that a type of shadow foster care exists in New York; NYSDA has received reports of Child Protective Services workers encouraging parents to sign over custody of their children to family or friend under the threat of removal proceedings.
 
Rulemaking from the Office of Children and Family Services (OCFS) that went into effect of Dec. 8, 2021, exponentially increases the worries of those who already fear the existence of a shadow system in New York. As reported in the Aug. 10, 2021, edition of News Picks, OCFS introduced revised proposed “host family” regulations, which would “establish standards for the approval and administration of host family homes.” Those Host Family Regulations, which NYSDA and others had opposed, have now been adopted.
 
Chief Judge has “Watchful Eye” on COVID-19, Hochul Declares Emergency
In her November 29th public message, Chief Judge DiFiore expressed awareness of “the developing news on the new COVID variant” and said the court system is “prepared to make any and all necessary and appropriate adjustments based on the science and guidance as explained and set forth by our public health officials.” Saying that “the ability to set firm trial dates is one of the most powerful tools at our disposal to move cases and reduce backlogs,” DiFiore said that Administrative Judges have been asked “to review their facilities with an eye toward reorganizing court operations and repurposing existing space in order to make greater use of our available courtroom capacity” in a manner consistent with social distancing restrictions. She and Chief Administrative Judge Marks will work with government partners and public health officials, and “will keep a watchful eye on the COVID metrics and the emerging variant....” They “will be ready to make adjustments on the fly as we do our level best to safely move our dockets forward and promptly and fairly adjudicate cases in these challenging times,” she concluded. This was in line with DiFiore’s November 1st message, with added emphasis on caution regarding the new variant.
 
Governor Hochul issued Executive Order (EO) 11 on Nov. 26, 2021, declaring “a State disaster emergency for the entire State of New York through January 15, 2022,” effective December 3rd. Unlike the Executive Orders issued by former Governor Cuomo, Hochul’s EO is quite limited. It does not directly affect criminal or family legal proceedings. Nor does it shut down schools and businesses, which, coverage of a December 2nd briefing indicated, Hochul is not prepared to do. The EO aims to boost responses to the omicron variant by, e.g., increasing hospital capacity, making more testing available, and encouraging vaccinations.

Rising COVID-19 cases had been of concern even before news hit about the omicron variant. As reported by Syracuse.com back on November 15th, a spike in cases at the jail in Oneida County had led to a suspension of transporting people from the jail to court. “‘All court appearances, except for scheduled trials and other emergencies that may come up, will be conducted virtually from the Oneida County Correctional Facility,’” the Sheriff announced.
 
CCI Report: Lessons Learned About Remote Justice During COVID-19
Even as preparations are underway to meet the threat of another COVID-19 surge, results and lessons of the pandemic are being debated. Among efforts to address impacts on the legal system is Learning From Crisis: Remote Justice in Criminal Courts, from the Center for Court Innovation (CCI). The November 2021 report is based on information from New York City courts and Newark Municipal Court, and offers 10 key lessons that reflect two general considerations: “Remote operations risk inflicting significant harms” but “[t]here are sizable advantages as well,” at least for people not held in pretrial detention. The key lessons offered:
 
1. Consider ways to maintain the procedural justice benefits of remote court.
2. Ensure equity by addressing barriers to remote participation.
3. Mitigate adverse unintended consequences impacting courtroom communication.
4. Reinstitute in-person arraignments.
5. Institute uniform procedures, set by state or local court administrators.
6. Help people gain accurate information about the status of their case.
7. Adopt a flexible approach to warrants.
8. For cases ordered to supervision or services, consider sustaining remote compliance reporting.
9. Sustain remote supervision and services, but not across-the-board.
10. Promote equity by distributing phones with video capability.
 
DOCCS Issues Memo Updating Protocols for Secure Attorney-Client Phone Calls
The Department of Corrections and Community Supervision (DOCCS) has issued a Memorandum, dated Nov. 29, 2021, updating procedures for arranging secure telephone calls with incarcerated clients. (Note: the current Memorandum refers to Legal Visits under Directive 4404, although the former procedures for attorney calls were included in Directive 4423 referring to Telephone Calls.) The updates offer greater convenience and flexibility in making the arrangements. Among the changes are:
 
  • Requests no longer need to indicate that a telephone call is necessary and a standard legal visit would be “unduly burdensome”; and there are no longer distance requirements to arrange a secure telephonic consultation (formerly attorney had to be outside 45 miles [30 miles for attorneys in NYC] from the facility).
  • Attorneys may designate staff members to assist in making the arrangements by certifying in writing to the department that the individual is a paralegal and that the attorney has direct supervisory authority over the paralegal. Law students may also be permitted to arrange telephonic consultations where an attorney member of the law school’s facility certifies to the department, in writing, that the faculty member has direct supervisory authority over the student, makes reasonable efforts to ensure that the student’s conduct is compatible with the professional obligations of a lawyer, and provides the faculty member’s contact information through the school’s publicly listed business phone number and school issued email address.
  • The request must suggest two dates and times (excluding weekends, evenings and holidays) as options for such calls (down from three previously).
  • Calls may not exceed one hour (up from 30 minutes previously), and where exigent circumstances exist, applications for extension may be made to DOCCS Counsel’s Office, subject to the facility’s ability to accommodate such request.
  • Out of state attorneys may arrange telephonic consultations upon providing verification they are in good standing with the pertinent attorney practice oversight agency in their jurisdiction.
  • Incarcerated clients subject to telephone restrictions will not lose other calls (previously a legal call was in lieu of other calls to which the individual may be entitled).
 
Protocols still in place are:
  • Requests may be initiated by telephone but must be followed by a written e-mail or fax communication, addressed to the client’s Supervising Offender Rehabilitation Coordinator or designee.
  • Confirmation of the date must be returned by the facility to the attorney within three business days of the request.
  • Calls must originate from the telephone number on the attorney registration statement; in the case of a law student, from the number provided by the faculty member in the initial designation statement.
 
Practice Advisories: Change in Immigration Enforcement Priorities
The Immigrant Defense Project (IDP) has released practice advisories that can be accessed here. These are a result of the Department of Homeland Security (DHS) enforcement priorities changing under the Biden administration. The new enforcement guidance/prosecutorial discretion memo from DHS (“Mayorkas memo“) went into effect last week and the memo is supposed to guide ICE and CBP actions related to arrest, detention, and deportation. Two new practice advisories from Immigrant Legal Resource Center, National Immigration Project of the National Lawyers Guild, and Immigrant Defense Project provide immigration and criminal defense practitioners with an explanation of the new policies, and what they can do to use DHS’s guidance in defending their clients.

  • “The Practice Advisory for Criminal Defense Attorneys highlights criminal defense implications and strategies for representing immigrant clients facing criminal charges in light of the Mayorkas memo. We have written this to be useful for Padilla attorneys and line defenders.
  • The Practice Advisory for Immigration Advocates focuses on immigration practice and strategies for seeking prosecutorial discretion from ICE in custody decisions, removal proceedings, and other contexts.”
 
RIAC 2 Discusses the “Mayorkas Memo” in its December 2021 Newsletter and Tips for Defense Counsel
In their December 2021 Newsletter, the Regional Immigration Assistance Center, Region 2 (RIAC 2) discusses some of the language from the changes as well as tips on what defense counsel can do.
 
“The ‘public safety’ category is most relevant to your clients and will be the focus of our last newsletter of 2021.” Under the heading, “The ‘Public Safety’ Category for Prioritized ICE Enforcement,” the newsletter states: “A noncitizen who poses a current threat to public safety, typically because of serious criminal conduct, is a priority for apprehension and removal.
There can be aggravating factors that militate in favor of enforcement action…
• the gravity of the offense of conviction and the sentence imposed;
• the nature and degree of harm caused by the criminal offense;
• the sophistication of the criminal offense;
• use or threatened use of a firearm or dangerous weapon;
• a serious prior criminal record.”
 
RIAC 2 also explains “there are mitigating factors that militate in favor of declining enforcement action…” beginning with these two:
• “advanced or tender age; [and]
• lengthy presence in the United States.”
 
Second Comment Period for NIST Report on DNA Mixtures Closes
As noted in the Oct. 28, 2021, edition of News Picks, the U.S. Department of Commerce’s National Institute of Standards and Technology had reopened the period for public comment on their report on methods for interpreting data from complex DNA mixtures; it has now closed. The report focuses on samples that contain commingled DNA from two or more contributors.
 
The key takeaway, as highlighted by the comments of both The Legal Aid Society and Brooklyn Defender Services, is that there is a lack of reliable empirical data on the reliability of DNA mixture analysis and that more information is needed to assess the reliability of the genotyping software that is used to analyze mixtures.
 
Both the executive summary and the full report are now available.
 
Student Loan Updates
Thank you to the Education Debt Consumer Assistance Program for this update on student loan payments and the Public Service Loan Forgiveness Program.
 
Student Loan Payment Resumption
Federal student loan payments are expected to resume February 2022. Here are some tips:
  • Make sure your student loan servicer has updated contact information.
  • Log into your servicer account and look for recent notices. You should receive your first invoice with the amount and due date at least 21 days in advance.
  • If you want auto-debt, you will need to provide your servicer with updated bank account information and authorize the automatic withdrawals.
  • If you feel you can’t afford your payment, look into an Income Driven Repayment plan. If it is still not affordable, get free help! There are other plan options that may work for you. 
 
Public Service Loan Forgiveness (PSLF)
As a reminder, if you are pursuing PSLF, you want to take advantage of the latest waiver relief. Under this relief, you will get credit for payments made regardless of the type of loans or repayment plan. You must still meet the employment requirements of the original PSLF program by working full time for a qualifying employer. Click here for more information.
  • To get credit for payments made, you will need to file an employment certification form for each qualifying employer. Federal Student Aid recommends that you use the PSLF Help Tool to confirm your employer qualifies and generate the forms. To complete the forms, you will need the employer’s EIN number and employments dates. Follow the submission instructions on the form. Here’s a short video on how to use the tool.
  • If you still have Federal Family Education Loan (FFEL), Perkins, or other (non-direct) federal student loans, you’ll need to consolidate your loans into a Direct Consolidation Loan to qualify for the waiver and original PSLF program. You should only consolidate non-direct loans. Here’s a video on the consolidation process.
 
Beware of Student Loan Scams
Student loan scams are on the rise. If you are promised immediate forgiveness, asked for your FSA ID password, or asked to pay upfront cost or monthly fees, it is likely a scam. You can read more here. You should never have to pay for student loan help. You can call your servicer for free assistance.
 
Need Student Loan Help?
Contact the Education Debt Consumer Assistance (EDCAP) for free and unbiased student loan help: 888-614-5004 or edcap@cssny.org. They offer counseling services and can guide you through the PSLF waiver and application process.



Association News


Former Board Member Releases Memoir/Social Justice History
Dr. Alice Green, the founder and Executive Director of the Center for Law and Justice (CFLJ), has written We Who Believe in Freedom: Activism and the Struggle for Social Justice. A former member of both NYSDA’s Board of Directors and Client Advisory Board, Green is well known for her work in community, her research, analysis, and writing about the criminal legal system, and her fearless leadership and advocacy. A book launch was held on December 8th, at which Green shared the spotlight with representatives from community groups and organizations who have current or planned projects that highlight the history and involvement of African Americans in the City of Albany and/or promote anti-racism work. See the CFLJ website.
 
Thursday, December 16, 2021, 3:00 - 5:00 pm: Whose Witness Is It Anyway? Ethical Issues in Communicating with Witnesses, with Jill Paperno, First Assistant Public Defender, Monroe County Public Defender’s Office. The program will provide 2.0 CLE hours in Ethics and Professionalism. There is no cost for this program, but pre-registration is required. For details and program registration, click here.