• Resources Made Available in 2022, More to Come
• Court of Appeals: No Remand Solely for CPL 730 Exam
• NYCLU Sues NY State to Enforce Public Defense Reforms
• Study Released on First Two Years of Bail Reform
• Less is More One Year Anniversary Report
• Teach-In Held to Bring Renewed Attention to Preserving Family Bonds
• DCJS Proposes Changes to Rules on Probation Transfers
• CAL Provides New Resource: SCOTUS Docket Update
• ILS Announces Grants to 17 Counties for Family Defense Quality Improvement and Caseload Reduction
• NYCLU Releases Report on Police, Other NY Government Drone Data
• LDF Comments on Surveillance and Automated Decision-making Systems
• Decrypting a Defense Newsletter - Holiday Edition
• Year-End Review by Center for Statistics and Applications in Forensic Evidence (CSAFE) Provides Insights for Defense Counsel
• Words Matter: Language Affects Medical Treatment of Addiction

Resources Made Available in 2022, More to Come

We anticipate that 2023 will bring, among other exciting developments, a refreshing of our website and creation of new resources by our Discovery and Forensic Support Unit. Parts of these projects are well underway, and some fruits of that work have already appeared. Meanwhile, the Backup Center continued to make other resources available to defenders this year, cooperating with others. Examples include:

Discovery Checklist for VTL 1192 Cases

“The NYSDA Discovery Reform Implementation page now includes a checklist for items defense attorneys should be receiving in discovery for any Vehicle and Traffic Law (VTL) 1192 case, or where allegations of intoxicated or impaired driving are elements of another charge.” October 31st News Picks.

Updated SORA Manual

“The Second Edition of ‘Defending Against the New Scarlet Letter: A Defender’s Guide to SORA Proceedings,’ by Alan Rosenthal in cooperation with the Onondaga County Bar Association Assigned Counsel Program (OCBAACP), has just been released. The updated resource, which includes a new section on Autism Spectrum Disorder as a Mitigating Factor, is available in electronic version here.” October 31st News Picks.

Spring 2022 DuBrin CPL 30.30 Manual Available

The Spring 2022 Edition of “Criminal Procedure Law Section 30.30(1) Manual” by Drew R. DuBrin of the Monroe County Public Defender’s Office is available on NYSDA’s Criminal Defense Resources webpage, as announced in the November 22nd News Picks.

Center for Appellate Litigation Resources Shared

NYSDA often noted, in News Picks and elsewhere, helpful resources from the New York City Center for Appellate Litigation (CAL). For example, a September 23rd News Picks item about gun law developments in New York following the Second Amendment decision in New York State Rifle & Pistol Ass’n, Inc. v Bruen (142 SCt 2111 [2022]) noted ‘The Center for Appellate Litigation has issued a new edition of their invaluable “Issues to Develop at Trial” which addresses the new Act.’” NYSDA greatly appreciates CAL’s generous sharing of its resources. A special thank you to Robert S. Dean, who is retiring as head of CAL at the end of the year.

NYSDA Website Resources

Anticipated updates to the website will bring more and updated information. Meanwhile, defenders can already find many publications and links there, including New York Lesser Included Offenses (2021), Getting the Expert Funds You Need Under County Law § 722-c, and many others on the Resources page. If you have information for NYSDA to share, please contact us at info@nysda.org. Our continued thanks go out to the many offices and individuals who have shared their knowledge and skill though NYSDA over the past year!

Court of Appeals: No Remand Solely for CPL 730 Exam

The opinion in People ex rel Molinaro v Warden, Rikers Island (2022 NY Slip Op 07093 [12/15/2022]) opens with a summary of the holding: “we resolve an open question in this Court and hold that, in accordance with CPL article 730, when a defendant is not in custody, a court only has the authority to either order a competency examination on an out-patient basis or to direct that the defendant be confined in a hospital pending completion of the examination upon proper medical recommendation that such confinement is necessary. The court may not remand a defendant into custody solely because an examination has been ordered.”

To reach that holding, the Court first found that, while the matter that sparked the appeal had been resolved, the mootness exception should be applied—the question presented was significant and novel, was likely to recur, and likely to evade review.

The Court then looked at the language of the statute, CPL 730.20(2) and (3), which describes what is to happen when a defendant is not in custody and is in custody, respectively. A defendant being arraigned on an offense that is not a qualifying offense under the bail statute (see CPL 510.10 [4]; 530.20 [1] [b]) is not “in custody” for purposes of 730.20(2). There, “the phrase ‘in custody,’ like the phrase ‘hospital confinement, refers, as a practical matter, to where a defendant may be properly examined by psychiatric personnel,” not to the broader custodial control exercised over a defendant at a courthouse. The Court also found that the legislative history of 730.20 supported its interpretation of 730.20(2).

Finally, the Court noted that measures were available to ensure completion of competency examinations, including ordering supervised release with non-monetary conditions (see CPL 510.10 [3]; 530.20 [1] [a]); revoking release status for failure to appear (see CPL 530.60 [1]); or, in appropriate cases, ordering “a psychiatric evaluation to determine whether civil confinement is necessary (see Mental Hygiene Law § 9.43; see also CPL 500.10 [3-c] [a]-[b]).”

NYCLU Sues NY State to Enforce Public Defense Reforms       

A press release issued on Dec. 16, 2022, announced that New York Civil Liberties Union (NYCLU) “sued New York State in Albany County for failing to meet its public defense obligations under the historic settlement reached in the Hurrell-Harring v. New York lawsuit.” Within the press release, they describe the crisis: “The settlement’s fundamental reforms changed the indigent defense landscape statewide. But the state has recently violated the settlement by failing to adequately fund assigned counsel programs, creating a new crisis in public defense including chronic understaffing, overwhelming workloads, and ultimately, a lack of constitutionally-mandated counsel.” Links to the case materials were also provided in their release. News coverage followed NYCLU’s press release by the New York Law Journal, Queens Eagle, and Syracuse.com.

Study Released on First Two Years of Bail Reform

Earlier this month, the Data Collaborative for Justice at John Jay College released a study assessing the first two years of New York’s bail reform legislation. In general, the report finds that the reforms were most effective in 2020, with a significant reversion in 2021. For example, in 2020, 29% of people charged with violent felonies were ROR’d; in 2021 that number fell to 21%. That trend continued for people charged with non-violent felonies (54% to 47%) and misdemeanors (85% to 81%). Similarly, people in 2020 were able to pay their bail at arraignment 26% of the time, but only 18% in 2021.

The study also finds considerable regional differences throughout the state. For example, in 2021 only 53% of people charged with violent felonies were remanded or had bail set in New York City courts, as compared to 64% in suburban New York City courts and 79% in “upstate” courts. The disparity is even more pronounced for misdemeanors - only 6% in NYC as opposed to 10% in suburban courts and 19% upstate.

You can read the summary here and the full report here.

Less is More One Year Anniversary Report

This month, the Less is More Coalition published a report marking the one year anniversary of the eponymous legislation. The report finds that by the end of January 2022, 843 people being held for technical violations were released – 420 from Rikers Island and 423 from other jails across the state. By that time period, 573 people were released under the statute’s mandated recalculated incarceration periods. By July 2022, the numbers were even more striking – there was an 87% drop in people incarcerated for technical violations as compared to pre-pandemic 2019 rates, with a 99% decline in New York City jails specifically. And after DOCCS completed the legislation’s retroactive time-credit calculations, the number of people on community supervision dropped by 40%.

However, there are still administrative hurdles to the implementation of many provisions of the act. As discussed in the report and covered in the March 22, 2022 edition of News Picks, DOCCS has created new rules that undermine the language and intent of the statute, including still holding hearings inside jails and not courthouses (especially in Dutchess and Onondaga Counties), ignoring the act’s definition of nontechnical violations, allowing the extension of a final revocation hearing for “good cause,” and creating a new parole violation for “failing to appear at revocation hearings.”

If you have questions regarding Less is More, please contact the Backup Center for assistance.

Teach-In Held to Bring Renewed Attention to Preserving Family Bonds

The Preserving Family Bonds Coalition (PFBC), a statewide coalition of families impacted by the foster system and advocates for both children and parents, held a teach-in to educate the public about the importance of the Preserving Family Bonds bill (PFB) and to bring renewed attention to the necessity of the legislation. PFB, a bill that would allow family court judges the discretion to order contact between children and their biological parents post termination of parental rights (TPR), was vetoed in January 2022 by the Governor for a disappointing second time in three years. The 90-minute virtual teach-in was held on Dec. 8, 2022, and saw approximately 100 attendees. Nila Natarajan, Supervising Attorney & Policy Counsel, Brooklyn Defender Services’ Family Defense Practice, and moderator of the event said “[a]t our recent Preserving Family Bonds Teach-In, we were able to showcase a breadth of perspectives on this bill, including that of adoptive parents and parent advocates, judges, child development experts, attorneys for children, and parent defenders. This legislation allows a judge to order contact between a child and their parent after the termination of parental rights when this is in the child’s best interests, enabling parents and children to use every legal avenue to fight for their family and still preserve their loving bonds.” The link to the teach-in can be found here, and a one-pager about PFB, courtesy of Brooklyn Defender Services, can be found here. NYSDA is a member of the PFBC. You can show your support for the bill by signing on here.

DCJS Proposes Changes to Rules on Probation Transfers

The NYS Division of Criminal Justice Services (DCJS) posted an announcement on its website about “Proposed amendments to Interstate and Intrastate Transfer of Probation Supervision Regulations.” Proposed changes as to transfers within the state include “reducing the number of days from 60 to 45 for receiving probation departments to investigate and respond to intrastate transfer requests; authorizing receiving counties to temporarily supervise probationers who reside in their county until a full intrastate transfer can be completed; . . . and establishing a protocol that allows supervision to occur by a contiguous county (with court approval) in cases where a conflict exists within the county of residence.” Comments on the proposed amendments to 9 NYCRR Part 349 may be submitted through Monday, Jan. 23, 2023, by contacting Danise A. Linen, dcjslegalrulemaking@dcjs.ny.gov or 518-457-8413.

Changes have also been proposed to 9 NYCRR Part 357 relating to probation services for Article 3 juvenile delinquency cases. These proposed amendments were published in the November 23rd State Register. Among the changes is a 90-day limit (absent a court order) on electronic monitoring in diversion cases. Among language changes, the word “incorrigible” is deleted from various provisions, conforming the regulation to a law enacted last year eliminating the term from the Family Court Act. L 2021, ch 97. Comments on these proposed changes may be submitted to the contact noted above until 60 days after publication.

CAL Provides New Resource: SCOTUS Docket Update

The Center for Appellate Litigation (CAL), through its Impact Lit Project, has put out a new resource, the SCOTUS Docket Update. This summary of docketed cases and cert petitions relevant to criminal practice, sourced from SCOTUSBlog, will be a bi-annual product. Cert petitions can act as valuable research assistance when they touch on issues that lawyers are currently working on, CAL notes. NYSDA thanks CAL for sharing this new resource with the defender community. Other CAL resources, as often noted in News Picks, include the monthly Issues to Develop at Trial and the bi-monthly newsletter Court of Appeals Update.

ILS Announces Grants to 17 Counties for Family Defense Quality Improvement and Caseload Reduction

The NYS Office of Indigent Legal Services (ILS) announced the selection of seventeen counties to receive the Second Upstate Family Defense (Child Welfare) Quality Improvement & Caseload Reduction Grant: Albany, Cattaraugus, Chautauqua, Dutchess, Erie, Genesee, Greene, Onondaga, Ontario, Putnam, Rensselaer, Saratoga, Schenectady, Steuben, Tompkins, Ulster, and Westchester. According to the ILS Request for Proposals (reported in the August 10th edition of News Picks), the purpose of the grant 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. …. 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.” (Footnote omitted.) In the award announcement that was emailed in November, Patricia Warth, Director of ILS, commended “the seven additional counties that submitted thoughtful proposals which demonstrated the seriousness of purpose and commitment to high quality representation that we hope to support in the future.”

NYSDA congratulates the recipients of this grant. We offer our continued support to recipient counties of this and prior grants, and all providers of family court adult mandated representation. Our Family Court Staff Attorney, Kim Bode, can be reached at kbode@nysda.org for any questions or support needs.

NYCLU Releases Report on Police, Other NY Government Drone Data

The New York Civil Liberties Union (NYCLU) has released Prying Eyes: Government Drone Data Across New York State, a report on drones that are registered with the Federal Aviation Administration (FAA) by New York government agencies, including law enforcement. Based on a Freedom of Information Act request to the FAA, the report indicates that of 530 active drone registrations held by NYS entities, 327 are for drones operated by law enforcement. Of those, 126 are registered to the State Police, 33 to the Nassau County Police Department, and 19 to the New York City Police Department. Many other law enforcement agencies have one to eight drones registered; a table listing the registrations is available in the online report. The NYCLU expresses both safety and privacy concerns, noting the military and biometric surveillance capabilities of some drones and their increasing availability and affordability. The report notes that “a bill in the state legislature (S675/A3311) would prohibit drone surveillance of protests and other events and activities protected by the First Amendment and require a search warrant before drones are used in police investigations. It would also prohibit drones from using facial recognition software, weapons, or crowd control devices.”

LDF Comments on Surveillance and Automated Decision-making Systems

The NAACP Legal Defense and Educational Fund, Inc. (LDF) on November 21st submitted comments to the Federal Trade Commission regarding a Proposed Rulemaking on commercial surveillance and data privacy, focusing on automated decision-making systems (ADSs). Because there are instances when these nearly-ubiquitous systems “are not only ineffective but also reproduce or exacerbate inequities, bias, and discrimination,” LDF urged the FTC “to use its existing regulatory authority to protect consumers from algorithmic bias, including bias in products where the end user is a government entity.” Further, the FTC should “use its authority to prevent the harms caused by commercially-developed technologies, particularly those that leverage large amounts of sensitive data, that are used by law enforcement to discriminate against communities of color,” LDF said. [Emphasis added.] The 38-page document discusses reasons that ADSs can lead to unequal outcomes. It notes that “researchers and litigators have found algorithmic bias across a number of sectors, including lending, housing, employment, health care, and law enforcement.” Among many points made is that “crime statistics are not objective measures, but are highly influenced by what behaviors and communities police target,” citing a November 3rd NPR story.

Defenders may be particularly interested in the section of the comments headed “Commercially-Developed Technologies, Some of Which Exhibit Algorithmic Bias, Are Also Deployed By Law Enforcement in Ways That Disproportionately Harm People of Color.” One type of system discussed is gunshot detection (e.g. ShotSpotter, which has been discussed in past News Picks, most recently on August 10th). Cameras and facial recognition software, student activity and social media monitoring systems, and predictive policing are also discussed in that section. The LDF comment discusses harms done by algorithmic discrimination and the need for additional measures to identify and redress algorithmic bias. NYSDA has long pointed out such problems; this year, an April News Picks item noted the article “Reckless Automation in Policing“ and a January 14th item sought to “[Keep] an Eye on Hi-Tech Tools.” The algorithms found in digital risk assessment tools, from those used in pretrial detention determinations to those in parole, have received particular scrutiny, see e.g., the Feb. 12, 2020, News Picks item “PJI Rejects Pretrial Risk Assessment Tools” and the August-November 2014 issue of the Backup Center REPORT at page 5.

Decrypting a Defense Newsletter - Holiday Edition

The Legal Aid Society’s Digital Forensic Unit infused a holiday theme into their monthly newsletter for December. Topping the list of gifts privacy-conscious shoppers should avoid was Amazon’s Ring Always Home Cam, a product Amazon describes as “a first-of-its-kind flying indoor security camera for your home that flies along custom flight paths so you can see what’s happening around your home no matter where you are.” The newsletter cautions against purchasing an in-home surveillance product with built-in wiretapping abilities created by a company with a “friendly relationship with law enforcement” and “loosey-goosey security practices.”

Issuing a warning for holiday travelers, the newsletter also highlighted new video analytics technology the TSA are testing on airport travelers. “The TSA has recently been testing facial recognition technology as a replacement for human employees’ ID verifications. There are many issues that arise out of this program. For example, it is not mandatory, but it forces passengers to opt-out, rather than opt-in.” Penalties for opting out of the program include wasting time and potentially missing flights.

In typical Decrypting a Defense fashion, a few recent technology-related criminal cases were highlighted including People v Rodriguez, 38 NY3d 151 (2022) (addressing the admissibility of text message screenshots); People v Gonzalez, 74 Misc 3d 1140 (NY Sup Ct 2022) (controverting overbroad search warrants of mobile phones and cell site location data); and People v Gomez, 76 Misc 3d 1230(A) (NY Sup Ct 2022) (granting a hearing to determine the suggestive impacts of facial recognition technology on ID procedures).

Last but not least, in part two of an ongoing series, the newsletter comments on digital forensic reports generated by “Magnet AXIOM and Cellebrite Physical Analyzer,” “two well-known and well-used software tools that can produce portable reports [of information extracted from mobile devices].” One important thing for attorneys to keep in mind when reviewing these reports is that the “original source data, such as a phone extraction or computer ‘image’ (exact copy), is not necessarily included with these reports. It can be difficult or impossible to confirm whether all relevant communications, photos, or other evidence is included in the report.” Even though these reports may be very large and appear to contain everything, they are not a full copy of all the data extracted.

Year-End Review by Center for Statistics and Applications in Forensic Evidence (CSAFE) Provides Insights for Defense Counsel

Study Shows Defense Expert Rebuttals Can Neutralize Prosecution Fingerprint Evidence

CSAFE highlighted a study it partially funded, which found that defense expert rebuttal in mock trials with fingerprint evidence helped reduce jurors’ willingness to convict. The difference between mock conviction rates when the jury was presented with a prosecution expert versus an expert on both sides was significant as most jurors go into trial believing fingerprint evidence is just as reliable as DNA evidence. The authors stated, “waging a battle of fingerprint experts effectively conveys information about the limits of fingerprint identifications and supports awarding funds to indigent defendants to retain their own experts to not only explain but also substantively scrutinize the government’s fingerprint evidence.” “By focusing the juror’s attention on a rebuttal expert, the defense can present information that raises questions about the fallibility of fingerprint evidence in general and the fingerprint evidence used in the case at hand.”

Takeaway: You may wish to consult with an expert to better understand fingerprint evidence and possibly rebut it at trial, attacking the method the prosecution’s expert used, inconclusiveness of the results, and/or exclusion, whichever may apply to your case.

CSAFE Researchers Contribute to Amicus Brief that Challenges the Reliability of Bite Mark Evidence

A CSAFE article highlighted its amicus brief filed in Illinois v Prante, wherein CSAFE joined the Innocence Project and others in challenging the reliability of bitemark evidence in a Frye jurisdiction.

John Prante served several decades in prison before being released on parole in 2019; he now challenges his conviction based on the debunked “science” of bitemark evidence. The National Academy of Sciences and the President’s Council of Advisors on Science and Technology have determined that there is no consistent and accurate way to correctly identify a bite mark on human skin. Moreover, there is no empirical support that even “expert” forensic odontologists “can reliably identify the individual who inflicted, or could have inflicted, that injury.”

A webinar from the National Institute of Standards and Technology with more information on how time has shown bitemark analysis to be junk science can be found here. NYSDA previously highlighted this junk science in the September 23rd and October 31st editions of News Picks.

Words Matter: Language Affects Medical Treatment of Addiction

“Who gets better medical care in the United States: ‘addicts,’ or ‘people with substance use disorders’”? This question opens an article on StatNews.com from October 26th. The article says that “[e]ven as the nation’s substance use crisis has escalated, … new research has emerged showing that simple word choices can have a big impact on the way health professionals view their patients and, accordingly, the care they receive.” It notes: “[r]esearch shows that health workers who use terms like ‘substance abuser’ or ‘addict,’ as opposed to more neutral language, are more likely to exhibit bias against patients struggling with addiction.” And it’s not just the terms used for people experiencing addiction that matter—treatment terms matter too: “‘“Medication-assisted treatment’” implies that medication is not treatment in its own right, and that it’s a corollary to something else, when in fact we know that medication is incredibly effective and saves lives,”’ … [one expert] said. ‘“We don’t talk about insulin-assisted diabetes treatment, or chemotherapy-assisted cancer treatment.’” As discussed in a recent issue of the Backup Center REPORT, terminology use can be tricky when long-established academic [or, here, medical] terms may have negative effects, but using other terms may be less clear. 

Association News

Save the Dates: NYSDA’s Winter-Spring Training Calendar in Development

Thursday, February 2, 2023, 2:30 – 4:30 pm: Working with Clients with Limited English Proficiency. Presented in collaboration with the Western New York Regional Immigration Assistance Center [WNYRIAC], speakers will include Sophie Feal, WNYRIAC Supervisor; Melissa Peña, Social Worker, WNYRIAC; Pamela Kefi, Executive Director, Deaf Access Services; and Karen E. Lillie, PhD, JD, Associate Professor of Linguistics at SUNY Fredonia. There will be no cost for this program; details and registration information coming soon.

Thursday, February 9, 2023, [Time TBD]: Ethical Considerations in Cases Involving Forensic Evidence, with Emily J. Prokesch, Office of the Georgia Capital Defender. There will be no cost for this program; details and registration information coming soon.

Friday, March 10, 2023: 37th Annual Metropolitan Trainer. This year’s all-day program will be held virtually. Details, including program and fees, coming soon.

56th Annual Meeting and Conference: July 30-August 1, 2023. The Annual Meeting and Conference will be held at the end of July at the Saratoga Hilton in downtown Saratoga Springs. We are proud to expand our programming by offering training and networking opportunities for criminal defense and family defense attorneys and members of the defense team. Information about hotel reservations will be available soon.

We Value Your Membership! Don’t Forget to Renew Today!

As 2022 draws to a close, we want to thank all of our members and donors for your support of our Association. We wish all of you a happy and healthy New Year!

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 x13), 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!