Materials Available on Challenging Certificates of Compliance
Lawyers looking for information to assist in challenging the validity of prosecutors’ certificates of compliance are encouraged to contact NYSDA’s Public Defense Backup Center (518-465-3524, info@nysda.org, or contact form). We thank Brooklyn Defender Services, the Albany County Public Defender Office, the Bronx Defenders, and others for sharing materials with us. NYSDA encourages defenders to strongly contest prosecutors’ failure—or refusal—to comply with the requirement of the discovery statute, CPL article 245.

The unpublished Albany cases cited by Judge Carter in his Rosario opinion on invalid certificates of compliance concerning discovery—the case described in the last edition of News Picks—are available here: People v Smith and People v Gomez. The Smith case was noted in the September 16th edition of Wednesday Watch on Injustice, the enewsletter of It Could Happen to You (ICHTY). ICHTY has long worked to highlight prosecutorial misconduct and the need for a Commission on Prosecutorial Conduct.

Bill Signed to Limit ICE Arrests at Courthouses
The Governor has signed the Protect our Courts Act limiting Immigration and Customs Enforcement (ICE) arrests at state courthouses, as noted in an Associated Press item from December 17th posted by BorderReport.com. Such arrests are also the subject of a federal lawsuit, in which the government defendants’ motion to dismiss was denied, except as to the Sixth Amendment claim, in September. As the opinion notes, the plaintiffs assert that “federal immigration arrests of noncitizens in and around New York state courthouses without judicial warrants violates the common law privilege against civil arrests while coming to, attending, and returning from court; the Administrative Procedure Act; and the First, Fifth, and Sixth Amendments to the United States Constitution.”

Vigilance may be needed to assure ICE compliance with New York’s new law. The NYCLU and Bronx Defenders alleged in papers filed on December 18th that ICE has been “violating a federal court order by continuing a ‘no-release’ policy of detaining undocumented immigrants arrested over the last three years,” according to a New York Law Journal article posted on Dec. 21, 2020.

Other Bills Signed
Also signed into law in December were the following:
  • Correctional Association of New York (CANY) access to state prisons for oversight purposes. L 2020, Ch 320 (Signed 12/2/2020). The Governor signed the bill only after securing an agreement, noted in the approval memo, that changes will be made by the Legislature, including the following: “CANY providing the Department 72 hours-notice prior to visiting the facility, CANY visitors will go through a vigorous background check before being permitted into a facility, permitting DOCCS to restrict visits when the facility is in lockdown or otherwise experiencing an emergency.”

  • Reporting requirements concerning youth placed in foster care. L 2020, Ch 321 (Signed 12/15/2020). The approval memo noted that no resources were budgeted to assist with the reporting requirements and that the Legislature has agreed to chapter amendments to reduce the frequency of reports to bi-annual, reduce the data points in the reporting, and allow for posting of the data online.

  • Data collection regarding child welfare preventive services authorized by the local district. L 2020, Ch 329 (Signed 12/15/2020). Similar to the approval memo for Chapter 321, the approval memo for Chapter 329 noted that no resources were budgeted and that the Legislature has agreed to amendments to reduce the number of required data points and include a sunset date.

  • Allowing youth discharged from foster care to reenter care without a motion, and placing a moratorium on aging out of care, during the COVID-19 emergency. L 2020, Ch 346 (Signed 12/15/2020). The approval memo notes that the Legislature has agreed to technical amendments.

Holiday Planning and Hopes Include 2021 Legislation
Justice advocates spent time in December pushing to advance reforms that would assist public defense clients and lawyers in a variety of ways. Advocates have been seeking gubernatorial signatures on bills passed in 2020, including the Driver’s License Suspension Reform Act. See, for example, this social media toolkit, this op-ed, and the NYS Association of Criminal Defense Lawyers’ statement. Furthermore, a push for 2021 legislation reducing incarceration levels and improving conditions of confinement is underway. Six New York City public defense providers have set out a legislative agenda, as noted by Politico in a December 17th post. A variety of organizations around the state have endorsed the recently-released Justice Roadmap New York. While labeled “progressive” by some, many such reforms embody not only human rights issues but also fiscal responsibility. An item about the HALT Solitary bill in the last News Picks makes a fiscal argument for that reform. And the Fines and Fees Justice Center is arguing in its policy statements that increased fines and fees is a counterproductive way to deal with fiscal problems. For information on criminal system reforms nationwide, see this report posted in The Appeal. NYSDA supports many of these proposals, opposes regressive proposals, and will continue our advocacy work in 2021.

Executive Order 202.83 Issued December 18th
On Dec. 18, 2020, Governor Cuomo issued Executive Order (EO) 202.83, which (1) extends existing suspensions and modifications that appear in the specified Executive Orders, including 202.76, through Jan. 17, 2021; and (2) specifically provides that “Executive Order 202.76, which provided that all suspensions of the Family Court Act shall remain in effect until December 18, 2020, is hereby modified to provide that all suspensions of the Family Court Act shall remain in effect until the expiration of this Executive Order, as extended or modified by future Executive Order.” An updated version of NYSDA’s Executive Orders excerpts document is available here.

Criminal and Family Defenders Be Aware and Beware …
NYSDA has learned from some defenders that family courts throughout New York City are severely limiting the number of visitation and custody petitions that they are hearing or even accepting. Based on what is being reported to us, there is seemingly no uniformity as to which litigants do or do not get their day in court, or get to see their kids for the holidays. With Christmas and the New Year right around the corner, NYC family courts are leaving parents with visitation and custody disputes in the dark, with no official policy for litigants or their attorney to refer to or challenge. Last month, the New York Law Journal published an opinion piece that raised concerns about the narrow definition of “essential matters” in family court and the harm to children and families that results from such a narrow definition. It is unclear at this point whether similar problems will make their way to the rest of the state. Attorneys with questions about family court operations are encouraged to contact Kim Bode, NYSDA’s Family Court Staff Attorney, at kbode@nysda.org.

Criminal Defenders Should Advocate for Limited Orders of Protections at Arraignment. If you have a case where the court will be issuing an order of protection, getting the “subject to family court orders” box checked does not mean that your client will be able to obtain such a family court order in the near future. There is a good chance that the client will be left high and dry because visitation modification petitions are not being heard in NYC family court right now. The best practice is to advocate with the criminal court judge to issue a limited order of protection that will allow your client contact with their child without the need for family court intervention. If you face pushback, you should reference the inability of litigants to access the courts for a modification in light of COVID-19.

Parole Revocation Rules Effective as of December 8th and 9th
The new version of the rules governing final parole revocation decisions, 9 NYCRR 8005.20, took effect Dec. 8, 2020. Determinations made on or after December 8th will be governed by the new section 8005.20. Lorraine McEvilley, Director of The Legal Aid Society’s Parole Revocation Defense Unit (PRDU), educated defenders about these amendments during NYSDA’s November 20th Criminal and Family Defense Update program. Defenders seeking information about the changes to 8005.20 should contact the Public Defense Backup Center.

The Department of Corrections and Community Alternatives (DOCCS) has adopted additional regulatory changes, amending 9 NYCRR 8004.2, 8004.3, 8005.21, 8010.1, and 8010.2 and repealing 9 NYCRR 8010.3, effective Dec. 9, 2020. The text of the changes appeared in the Sept. 23, 2020 edition of the State Register (pp. 1-3), and the notice of adoption appears in the Dec. 9, 2020 edition of the State Register (pp. 4-5). The notice of adoption includes responses to comments submitted by the PRDU. According to DOCCS, “[t]he purpose of the proposed changes is to harmonize the procedures for the issuance of warrants, cancellation of delinquency and dispositions for shock incarceration parole violators with the recent amendments to the rules governing standard conditions of release and dispositions after a final revocation hearing. Additionally, the purpose of the proposed amendment to 9 N.Y.C.R.R. § 8004.3(g)(2) is to further elaborate on the manner, consistent with applicable case law, in which the delinquency date is determined for the final declaration of delinquency when parole is revoked by operation of law by reason of a conviction for a felony resulting in a new determinate or indeterminate term.”

Court System Releases First Month of Police STAT Act Data
This week, the Office of Court Administration announced the publication of data required under the Police STAT Act, L 2020, ch 102 (amending CPL 10.40 and Judiciary Law 212[2]). The Police STAT Act was one of several pieces of legislation regarding law enforcement that were enacted in mid-June 2020.

The Division of Technology and Court Research (DoTCR) has created the “OCA-STAT Act extract” to provide required data on misdemeanors and violations. “Responding to recommendations of the Equal Justice in the NYS Courts Committee, the OCA-STAT Act extract has been expanded to include data on felony cases as well.” “The de-identified csv extract contains statewide criminal arraignments beginning November 1, 2020 and will be refreshed monthly to add cases from the previous month and to update information from months prior. Each row contains a defendant-docket arraigned with a top charge of felony, misdemeanor, or violation. Information on case location, intake process, top charge, demographics, case status, disposition, and sentencing are included.” The data comes from the state’s town and village courts (finger-printable offenses only), 61 city courts, 2 district courts, and 57 county courts (including Supreme Criminal Terms), as well as the New York City criminal courts, community courts, and supreme courts (criminal terms). To help users read and understand the data extract, the DoTCR has released a data dictionary.

The first data extract includes information about over 24,000 arraignments in November 2020. The data will provide new and timely insights regarding court and policing practices, including whether the police made an arrest or issued an appearance ticket; demographic information, such as race, ethnicity, and age; and different case dispositions, such as dismissals (defective accusatory instrument, in the interest of justice, legal insufficiency, speedy trial, etc.), adjournments in contemplation of dismissal, guilty pleas, and transfers or removals.

Technology vs Human Interaction: What’s Best for Clients and Justice?
NYSDA takes a clear stand that, emergencies aside, virtual court appearances should not replace in-person proceedings absent client consent. This position, including our statement on virtual/remote proceedings, was described in the last issue of News Picks. But lawyers need to know, and share with clients, information on the potential respective effects of remote and in-person proceedings—and that information may evolve. A recent analysis on Law360.com discusses research on artificial intelligence and algorithms, along with anecdotes, said to suggest that “human judges presiding over in-person proceedings and privy to the plethora of information that comes with in-person hearings may not offer the advantages we imagine they do.” The analysis also poses potential ways in which witnesses and others could use or feign technological issues to strategic advantage, such as using real or faked communication delays to gain time to more carefully respond. The lawyer who authored the piece concluded that “virtual hearings may be a useful tool in years to come, even after the pandemic is behind us.” The article includes some discussion of computer algorithms versus human decisions on bail, which is an ongoing topic of great interest and concern deserving of more careful scrutiny than is provided in the article.

Discussing an unrelated confluence of technology and human contact, a public defender writer has posted “Some Thoughts on Public Defense, Data Entry and Moral Injury.” Acknowledging the valid goals of data collection as a tool to help quantify previously anecdotal arguments about funding necessary for high quality defense, the author expresses concern that adding onerous data collection tasks to the workload of already overburdened public defenders will cause harm. Defenders face choices of foregoing needed work for clients or sacrificing non-work hours need for family and self-care. And collecting data during client interactions can be counterproductive: “The people we represent feel it when we look away from them to navigate drop down menus on computer screens. Requiring simultaneous data collection conflicts with best practices of building trust through eye contact and periods of listening without note taking.” The author invited others to share success stories “so that we can all learn how to better use data collection as a tool, rather than experience it as an obstacle to our work and a negative impact on our well-being.”

Stimulus Bill Restores Pell Grants for People Who are In Prison, Makes Other Student Loan Changes
A December 21st New York Times article discussed how “[t]he restoration of Pell grants for incarcerated students is something of a watershed moment for the criminal justice overhaul movement as it unwinds decades of punitive practices in favor of finding avenues to reintegrate incarcerated people into society. The measure was part of a bipartisan deal struck by House and Senate education leaders to address affordability and equity in higher education, then it was attached to the $900 billion stimulus bill making its way to President Trump’s desk.” John B. King Jr., former Secretary of Education, explained: “‘This is saying that the goal of the criminal justice system ought to be giving people the opportunity to take their lives in a different direction, and leave incarceration better prepared to support their families and support their communities.’” As reported by Inside Higher Ed, the bill “also would repeal a 1998 prohibition on students convicted of a drug offense from receiving federal financial aid.”
 
The Importance of Word Choices and Helpful Resources
The Southwestern University Law Review recently published an article written by Guy Padraic Hamilton-Smith, entitled “Banishing ‘Sex Offenders’: How Meaningless Language Makes Bad Law.” According to the abstract, the article is an “essay on how the term ‘sex offender’ is functionally meaningless, and invites policy responses that are out of step with the reality of sexual harm. These policy responses, in turn, hobble our efforts to reckon with sexual harm, foreclose accountability and redemption, and elide more effective approaches.”

There are a number of resources regarding the importance of word choices and the impact of humanizing language. Several resources have been compiled by the Osborne Association, including the Fortune Society’s insightful chart on words to use to replace labels that perpetuate harm and stigmatize clients. As defense counsel, we should be mindful as to how we refer to clients, the language we use--whether directly, or by reference to the court and members of the community. “Today, there are approximately two million people incarcerated in the United States’ jail and prison system. People with criminal justice histories are referred to in an array of dehumanizing labels, such as ‘inmates,’ ‘criminals,’ ‘prisoners,’ ‘convicts,’ ‘delinquents,’ ‘felons,’ and ‘offenders.’ Even after people complete their sentence of incarceration and return to the community, oftentimes these labels follow. Terms like ‘ex-inmates,’ ‘ex-prisoners,’ ‘ex-convicts,’ ‘ex-felons,’ and ‘ex-offenders’ are used to categorize and stigmatize people affected by the criminal justice system.” The resource further explains that “[d]ehumanizing labels stereotype and marginalize people rather than support them while they rebuild their lives. Individuals with justice system involvement are not defined by their conviction history. The words we use to reference people should reflect their full identities, and acknowledge their capacity to change and grow.” NYSDA is examining the language we use and we are making changes to ensure that we employ humanizing language.

Raise the Age Task Force Issues Final Report
The New York State Raise the Age (RTA) Implementation Task Force has issued its final report. The report includes various statistics and details regarding implementation of RTA since its passage in April 2017. The report notes that “[a]s of June 2020, there were no youth under age 18 detained with adults or sentenced to local jails or state prisons. Far fewer youth under the age of 18 are entering the justice system and opportunities for diversion have expanded for youth younger than 18 who are arrested.” The report recognizes that the “commitment to progress must be carried forward, as work remains to be done. While RTA has created a justice system that responds in more age-appropriate ways to the behaviors and needs of older adolescents, Black and Hispanic youth continue to be disproportionately represented and differentially treated at all points in the system.”

Positing a Prosecutorial Ethical Duty as to Defense Caseloads
In addition to avoiding obvious misconduct and ethical violations, prosecutors are supposed to “do justice.” A law review article published earlier this year posits that prosecutors’ ethical duties include exercising their discretionary charging powers in ways that avoid creating unconscionable workloads for public defense attorneys. A November 25th post on the Journal of Things we Like (Lots) highlighted the article, by Irene Oritseqeyinmi Joe, which was selected as a winner of the Fred C. Zacharias Memorial Prize for Scholarship in Professional Responsibility.

Public Defender May Have Conflict When Appearing before Judge Who Works in County Attorney’s Office
Ethics Opinion 1210 from the NYS State Bar Association says that an attorney from a public defender’s office may have a personal conflict of interest when appearing in criminal cases before a part-time town justice who is also an assistant county attorney, where the county attorney’s office “advises and represents the public defender’s office to secure funding for its operations and with respect to other financial and administrative matters ….” While the two offices described in the inquiry do not constitute “a single firm,” for conflict analysis, the opinion says, the lawyer from the public defender office “might have an incentive to curry favor with a full-time assistant county attorney ….” Several factors would need to be considered to determine if the defender would violate Rule of Professional Conduct 1.7(a)(2) by appearing before that attorney sitting as a judge, such as whether the two had worked together on defender office grant applications, the nature of their interactions, and whether the part-time justice has “a reputation for vindictive or retaliatory behavior.”

The inquiry did not involve a situation where the county attorney’s office or staff member acts as assigned counsel administrator for the county. That could change the analysis of, among other things, whether the two offices “share common office space or file systems”; whether lawyers in the county attorney’s office “supervise or control the legal services provided by the public defender’s office”; and maybe even whether the lawyer from the county attorney’s office “has access to information concerning the public defender’s clients.” This ethics inquiry provides one example of why, since 1965, it has been clear that county attorneys (or their staff) should not be assigned counsel administrators. See, for example, Rule 2.3.a of the Office of Indigent Legal Services’ assigned counsel standards, which says assigned counsel programs should not be part of certain offices including the county attorney’s office.

Commission to Reimagine the Future of NY Courts Issues Two Reports
As noted in an article on Law360.com, two working groups of the Chief Judge’s Commission to Reimagine the Future of New York’s Courts issued reports in mid-December.

The Appellate Practice working group focused “on enhancing both the efficiency and cybersecurity of New York’s appellate courts by creating a robust, more uniform technological infrastructure,” according to the Unified Court System announcement about the initial report. One recommendation is to create a single appellate case management system for the Court of Appeals and the four Appellate Division departments. Another is “a single statewide system for attorney requests of certificates of good standing, mental hygiene legal services and attorney grievance committees ….” While pushing for increased, uniform technology, the report acknowledges “that human beings are social creatures who will continue to benefit from face-to-face interaction” and says that “[t]he key is to hybridize technology and in-person operations to ensure both the timely and humane administration of justice.”

The Regulatory Innovation working group looked at ways “to improve the accessibility and quality of the Court System’s justice services ….” The recommendations in its report include a program allowing specifically-trained social workers “to offer limited legal and adjunct legal services to their social work clients” and expansion of the existing Court Navigators Program created in 2014. The legal problems that might be addressed include those related to health and housing, which many public defense clients face along with the issues for which counsel has been mandated. The report discusses “Alternate Business Structures for Law Firms,” concluding that they should not be approved now but that experiments in other states should be watched and, if successful, approval here should be reconsidered.

The dual reports follow the August publication of a report, noted in the Aug. 18, 2020, edition of News Picks, which outlined some goals and a checklist for resumption of in-person grand juries, jury trials, and related proceedings.


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