Gov. Hochul Signs Follow up Bill to Driver’s License Suspension Reform Act
In a follow up to our News Picks item on July 2, 2021, discussing the Driver’s License Suspension Reform Act and sharing a Practice Advisory prepared by Ranit Patel from the Bronx Defenders, we are happy to report that a related bill was signed into law on December 21st and is effective immediately. Several provisions of the Vehicle and Traffic Law have been amended to allow people to enter into a payment plan when their ticket is in default because of a missed appearance or unanswered traffic ticket and get their license suspension lifted, and the bill precludes suspension for failure to meet their payment obligation under an installment payment plan. 
 
Failure to Provide Respondents in Juvenile Delinquency Proceedings with CPL Discovery, an “Equal Protection” Violation
As reported by the New York Law Journal, the First Department unanimously reversed a Bronx Family Court decision in Matter of Jayson C. (2021 NY Slip Op 06794), finding that the court denied equal protection of the laws to a respondent in a juvenile delinquency proceeding by not providing them with the same CPL discovery rights provided to an adult in criminal court. The court wrote that “[a] respondent in a juvenile delinquency proceeding has the same right to cross-examine witnesses as a criminal defendant [citation omitted] and there is no reason to allow more limited access to impeachment materials in a juvenile suppression or fact-finding hearing than in a criminal suppression hearing or trial. The need for impeachment evidence is equally crucial in both delinquency and criminal proceedings. A similarly situated defendant in a criminal proceeding would be entitled to access to the impeachment materials requested by appellant.”
 
This case is pivotal in the ongoing discussion of whether family court litigants are entitled to the same substantive and procedural protections as criminal defendants, particularly where such litigants are faced with much of the same loss of liberty for the same or similar allegations. This case gives even more credence to those, including NYSDA, who argue that under Matter of Crawford v Ally, litigants faced with having a temporary order of protection issued against them in family court have the same procedural/substantive protections as those faced with the same loss of liberty in analogous proceedings in criminal court. 
 
Parents of Foster Children Still Retain Rights to Make Some Medical Decisions
In Matter of Athena Y. (Ashleigh Z.) (2021 NY Slip Op 06908 [12/9/2021]), the Third Department reversed the decision of a Rensselaer Family Court judge who ordered that two children in foster care be vaccinated against COVID-19, over the objection of their mother. In its decision, the Third Department reminds us that “[e]ven when the state intrudes on a family by obtaining a temporary order of custody due to abuse or neglect, ‘parents retain the right to make certain medical decisions for their children in foster care,’ up until the moment that parental rights are terminated,” absent specific exceptions, including emergencies. “Considering that providing a vaccine constitutes medical treatment … we find that a hearing was required before Family Court could grant petitioner’s request over respondent’s objection …. At such a hearing, the court must focus on whether respondent’s refusal to authorize vaccination constitutes ‘an acceptable course of medical treatment for [her] child[ren] in light of all the surrounding circumstances,’ while heeding the Court of Appeals’ cautionary point that courts cannot ‘assume the role of a surrogate parent’ ….”
 
Incoming Adams Administration Takes Shape; Policy Proposals Would Not Improve Safety
Incoming NYC Mayor Eric Adams has named Keechant Sewell as the next NYPD Commissioner. Sewell has been the chief of detectives for Nassau County. NYTimes coverage. According to NY1, Sewell will defer to Adams regarding bail reform, but expressed support for Adams’ statements about adding dangerousness to the bail law. As discussed below, defender groups, including NYSDA, oppose this approach as contrary to safety.
 
Louis Molina was named the NYC Department of Corrections Commissioner. He was an NYPD officer for 13 years and most recently worked for the Westchester Country Department of Correction. NYTimes coverage. As Molina takes on this role, the Rikers crisis continues to get worse. The sharp increase in COVID-19 led the outgoing Commissioner to call on prosecutors and courts to “consider every available option to reduce the number of individuals in our jail.”
 
At the same time, Adams also stated solitary confinement would continue to be used in the city’s detention facilities. The NYC Defenders issued a statement in strong opposition to the announcement, noting that “[t]he answer to the crisis on Rikers Island is not more punishment. The Board of Correction agrees that punitive segregation does not provide safety.” As a reminder, the Humane Alternative to Long-Term Solitary Confinement Act (HALT), which limits the use of segregated conferment to a maximum of 15 days, goes into effect in March of 2022.
 
“NYSACDL Condemns Incoming NYPD Commissioner’s Position on Adding ‘Dangerousness’ To Bail Law”
The New York State Association of Criminal Defense Lawyers (NYSADCL) issued a statement on December 21st in response to incoming NYPD Chief Sewell’s position on dangerousness. “We can’t afford to let another legislative session be consumed with talks of fear instead of truth, and that requires following the facts and protecting the important provisions passed in New York’s bail law, which are keeping thousands of people safe and with their families as they await their day in court. We urge the new Commissioner and others to follow the facts on bail reform, which requires more than a simple knee-jerk reaction. We all want safety, but further amending bail reform will not yield the results we desire. It will only make matters worse.” NYSDA supports the NYSACDL statement. We oppose efforts to add a dangerousness standard into our bail law, which would result in many more people being jailed pretrial around the state and would have a disproportionate impact on Black and brown people.
 
“Youth in Adult Courts, Jails and Prisons” Report issued
The above-entitled brief from The Sentencing Project “reviews the history, harms, pathways and trends that treat children as if they were adults.” Issues here overlap with those in the report noted below about policing in schools. Concise arguments against treating children as adults are timely, given allegations in the media that Raise the Age should be rolled back in the wake of increased numbers of homicides and certain types of violence. See, for example, the November 12th edition of News Picks.
 
Systemic Racism of School Policing
The Urban Youth Collaborative released a report analyzing arrests in NYC schools from 2016 to 2021. They found that even though Black and Latinx students make up 66.2% of the student population, they make up 90.9% of the students arrested. The findings might be helpful for pre-plea investigations and sentencing memos involving young clients, especially those arrested on school grounds. Full report here, data brief here. 
 
Opinion: It’s Time to Stop Throwing Young People with Undertreated Mental Health Conditions Issues in Jail
In this article authored by two mothers whose sons are incarcerated at Rikers and published in City and State NY, both call for alternatives to the current approach of locking up young adults. “Both of our sons have been pushed through what amounts to a school-to-prison pipeline for children of color from working class communities. Their mental health issues have been ignored and neglected by the public school system. Melissa’s son had behavioral problems from a young age and was always punished, and not one administrator ever inquired into the roots of his problems. For a long time, his family trusted the schools and also punished him on the advice of administrators and were called helicopter parents when they began questioning the schools’ methods. When he was in court, his family lobbied for his treatment, and the prosecutor offhandedly told them an important truth: that the majority of young people in the criminal justice system have a mental disorder.”
 
Wrongful Convictions Are One Reason for Reform
Painful stories of innocent people convicted and locked up capture headlines. The New York Times carried an extensive article on Dec. 15, 2021, about the exoneration of Anthony Broadwater in Syracuse: “He Was Convicted of Raping Alice Sebold. Then the Case Unraveled.” The story was covered on Syracuse.com on November 30th. Meanwhile, the New York Daily News reported on the settlement of three lawsuits alleging past prosecutorial misconduct during the tenure of former Queens District Attorney Richard Brown, costing New York City $17 million and fueling concerns over deliberate actions leading to wrongful convictions. The still-forming Commission on Prosecutorial Conduct is noted in the article; the Chief Judge announced her appointments to that body on December 13th.
 
Reformers point to wrongful convictions as a central reason to reform the criminal legal system. One December example is the opinion piece, “To prevent wrongful convictions, invest in public defense solutions,” posted on TheHill.com. Another is “How technology can help keep the innocent out of prison,” a New York Daily News op-ed by the co-founder of JusticeText, a purveyor of software to manage video evidence noted in News Picks on April 16, 2021. Well-known exoneree Jeffrey Deskovic continues, as in a November 27th blog post, to advocate for his 3 R’s – reversal of wrongful convictions, reform of policies at the heart of wrongful convictions, and recovery assistance for those released. While defenders see injustices not only in the prosecution and conviction of the innocent, but in the routine denial of basic rights and dignity to clients generally, wrongful conviction stories are a way to easily demonstrate the need for reform.
 
NYC Public Defenders Call on Albany to Reduce Jail Population, Invest in Communities and Keep Families Together
Covered by Spectrum News, the institutional public defender offices in New York City laid out a path for Albany lawmakers for the upcoming legislative session. “We urge your offices to do everything in your power to reduce the number of people being held inside these jails and to reduce the number of people being sent to jail across the state,” the groups wrote in a letter to Hochul and top lawmakers. “Albany must lead by enacting legislation that invests in communities, not cages, overhauls our racist parole system, seals records and empowers New Yorkers, reduces law enforcement budgets, curbs discriminatory hyper-surveillance, protects New York’s immigrant communities, recognizes the harm of family separation caused by removal of children from their parents and placing them in the foster system, and protects young people who deserve compassion, not incarceration.”
 
Court of Appeals Vacates Conviction for Sex Trafficking, Orders New Trial, With Concurring Opinions
On Dec. 16, 2021, the Court of Appeals issued a brief memorandum opinion in People v Lamb: “The sex trafficking statute is comprised of two distinct but linked elements, namely the offender must advance or profit from prostitution by one of the enumerated coercive acts (see Penal Law § 230.34). The trial court’s supplemental instruction, in response to a jury note, erroneously severed the required link between those elements. Accordingly, defendant’s sex trafficking convictions should be vacated, and a new trial held on those counts (see People v Brown, 87 NY2d 950, 951 [1996]).” Judge Singas and Judge Wilson wrote separate concurring opinions and Judge Fahy dissented in part.
 
Updates to the Guide to New York Evidence
According to the history of the Guide, in December, several rules were added, including the following of note for defenders:
  • 4.24.3. Possession of opioid antagonists [CPL 60.49; CPLR 4519-a]
  • 6.10.1 Missing Witness
  • 7.06 Abused person’s syndrome
  • 7.08 Child Abuse Syndrome
  • 8.23 Informal and Formal Judicial Admission
 
In addition, three rules were amended (check the endnote of each):
  • 6.09 Refreshing Recollection
  • 6.17 Impeachment by Instances of Misconduct
  • 7.05 Rape Trauma Syndrome
 
Updates to Criminal Jury Instructions 2d
Nine model jury instructions have been revised:
  • Penal Law 135.60; 155.30(6); 265.17(3); 270.20; 265.01(1); and 265.02(7)
  • VTL:1192 (2-a)(b); 1192(4); and 1192(4-a)
 
In addition, eight Penal Law model instructions were added: New Article 222 Cannabis [222.30; 222.35; 222.40; 222.50(1); 222.55(1); 222.60]; 265.17(3); and 270.40.



Association News


We Value Your Membership! Don’t Forget to Renew Today!
As 2021 draws to a close, we want to thank all of our members and donors for your support of our Association. We end the year by recognizing and celebrating the public defense community for all of the work you have done to represent clients throughout the prolonged pandemic.
 
Renewing your membership (or becoming a member) is simple and can be done online, www.nysda.org/page/Join_NYSDA, by phone (518-465-3524), or by mail (194 Washington Avenue, Suite 500, Albany, NY 12210). Thank you for helping us fulfill our mission to improve the quality and scope of public defense representation in New York!