Courts Continue to Make Adjustments Based on COVID-19 Concerns
As reported in the November 18th issue of News Picks, courts continue to adjust and change protocols because of COVID-19. On Nov. 23, 2020, Chief Administrative Judge Vito Caruso signed an Administrative Order regarding grand juries. Just days later, the New York Law Journal reported that grand jurors tested positive for COVID-19 in various jurisdictions across the state. And Law360.com reported that the Southern District of New York will be shuttering its courthouses to the public and canceling all in-person proceedings until at least mid-January as COVID-19 cases surge in the region and across the country. The closure began December 1st and will last until January 15th, Chief Judge Colleen McMahon stated in the order. Meanwhile, the New York Times published a story on Dec. 2, 2020, “Only 9 Trials in 9 Months: Virus Wreaks Havoc on N.Y.C. Courts.”
 
In town and village court news, the Times Union reported on Dec. 2, 2020, an issue that has been a problem for appearances in Rotterdam Town Court. People have been forced to wait to appear for their cases outside for hours in the rain because the court allowed only four individuals inside because of COVID-19 social distancing protocols. As reported in the article, Conflict Defender Tracey Chance wrote a letter to the courts in September requesting attention to this matter. "Chance said many of her clients are elderly, struggle with mental health issues, and do not have cars. Some walk to court or rely on the bus or Uber. She said some clients do not have cellphones while others only have phones with basic functions. In her letter, she noted clients share phones, and, in some cases, cars with strangers to ensure they don’t miss court. 'As we inch closer to winter, even sitting in a car for hours will prove to be a difficult task,' she said."
 
Also referenced in the article was NYSDA’s Executive Director, Susan Bryant. She observed individuals waiting outside for their appearances on Monday: “People with medical conditions that make them susceptible to COVID-19 are stuck standing in the cold rain because there’s no space inside for people to wait,' she tweet[ed]. 'This is not how our courts should be treating people!'“ The article went onto report that “Bryant, whose group provides a range of support services to public defenders, assigned counsel and legal aid lawyers across the state and works to ensure defendants get fair treatment, said during a phone interview Tuesday that 'we wouldn’t have animals standing out in the rain for that period of time waiting.’”
 
NYSDA has heard from other defenders that they and their clients are facing similar issues in other areas of the state. We stand committed to supporting defenders as you encounter challenges. We are keeping track of the rapid changes, and keeping inventory of the various court procedures, administrative orders, and protocols throughout the state from the various judicial districts, which can be viewed at Coronavirus 2020 Virtual Court Resources and Coronavirus 2020 Court Re-Opening Plans. If you have questions or information to share, please contact our Public Defense Backup Center via our web contact form, info@nysda.org, or (518) 465-3524.
 
Chief Judge DiFiore’s Weekly Message
In her November 30th message, Chief Judge DiFiore provided her weekly update on courts throughout the state amidst the pandemic. She also mentioned the jury trial that concluded last week in Queens, and offered praise to defense counsel, Michael Anastasiou, as well as other participants. Defense counsel’s client had been detained for two years at Rikers while awaiting trial. David Brand of the Queens Daily Eagle reported on the start of the trial and its conclusion.
 
New Executive Order Continues Prior Orders
On Dec. 2, 2020, Governor Cuomo issued Executive Order (EO) 202.79, which extends existing suspensions and modifications that appear in the specified earlier Executive Orders, including 202.72, until Jan. 1, 2021. An updated version of NYSDA’s Executive Orders excerpts document is available here .

Defending Clients’ Rights to In-Person Proceedings
With in-person court proceedings again limited due to COVID-19, a government funding crisis looming, and pressure to move cases increasing, NYSDA continues to assist attorneys with the many issues arising around virtual appearances. A major issue is client consent. NYSDA has issued a statement on virtual/remote appearances, which “opposes the use of virtual/remote communication for holding non-emergency court proceedings deemed critical stages, and for any proceedings, absent the consent of the person whose case is being heard.”
 
Consent is vital because so many rights are implicated when in-person proceedings are denied. These include the right to confront witnesses, the right to a public trial, the right to be present, and the right to effective assistance of counsel. And denial of in-person proceedings can exacerbate other problems, particularly systemic racism. Attorneys whose clients do not want to proceed remotely may find helpful a Massachusetts amicus brief noted by Law360.com. The brief, which “argued that virtual hearings unfairly impact minorities and low-income households, compounding hardships they already face in light of the COVID-19 pandemic and systemic racial injustices,” was filed by the Boston Bar Association, Massachusetts Association of Criminal Defense Lawyers, and the Charles Hamilton Houston Institute for Race and Justice at Harvard Law School. The case is Commonwealth v Vazquez Diaz. The defendant-appellant’s brief is here.
 
NYSDA’s recent statement includes a reference to the NYS Office of Indigent Legal Services (ILS) requirement that the physical presence of the client’s lawyer be part of plans for ensuring counsel at first appearance. On December 2nd, ILS issued a “Notification Regarding Representation at Arraignment.” This notice stresses the importance of in-person appearances: “It bears emphasizing … that conducting arraignments virtually is a temporary, emergency exception to the legal requirements of personal appearance by the defendant, and in person representation by counsel.”
 
Albany County Court Rules Invalid Prosecution’s Certificate of Compliance; Sanctions to be Determined
Judge William A. Carter’s Nov. 20, 2020, decision in People v Rosario finds the prosecution filed an invalid certificate of compliance, and rejects the prosecution’s assertions that they acted in good faith. The 14-page decision includes very helpful language that may assist defenders who have not been receiving police misconduct records under CPL article 245, as well as challenging certificates of compliance when discovery is incomplete. Some excerpts are quoted below.
 
“[B]ased on the obvious deficiencies and inconsistencies in the People’s Brady/Giglio disclosures, the court informed the People that it appeared they did not fully appreciate the scope of their duties and obligations regarding CPL Article 245 discovery compliance. The court also questioned the propriety of using the APD [Albany Police Department] Office of Professional Standards as an “appropriate named agent” (see CPL 245.35 [3]) in meeting the People’s weighty CPL 245.20 (l)(k)(iv) Brady/Giglio disclosures. While not ruling on the validity of the People’s CoC at the time, in very plain terms, the court informed the People that more was required of them to establish due diligence ….”
 
“Consideration of the historical context surrounding the passage of CPL Article 245; the sheer number of new statutory sections within CPL 245 directly speaking to the duties and obligations of prosecutors and law enforcement individually and collectively coupled with judicial discovery compliance review (see CPL 245.50) and an embedded statutory rule of construction mandating a presumption of disclosure (see CPL 245.20 [7]), leads this court to conclude that the Legislature intended the plain language of CPL Article 245 to govern the breadth of the People’s Brady/Giglio obligations.
 
In sum, if the People intend to call a member of law enforcement as a witness at trial, they must disclose all evidence and information, including that which is known to police or other law enforcement agencies acting on their behalf in the case, that impeaches the credibility of that law enforcement witness irrespective of whether they credit the information pursuant to CPL 245.20 (1)(k). There is simply no law enforcement exception to these requirements and as stated above, “law enforcement witnesses should be treated in the same manner as any other prosecution witness for purposes of cross-examination” (People v Smith, supra at 659).”
 
“This court reiterates its often stated and unwavering opinion that it is not the role of this court to instruct the People on how to meet their statutory discovery obligations, but merely to assess whether they have. Having held the People’s September 16, 2020 CoC and STR invalid and not filed ‘in good faith and reasonable under the circumstances,’ this matter is adjourned for the submission of written arguments concerning discovery sanctions.”
 
Back in September, in People v Randolph (2020 NY Slip Op 20231), the prosecution asserted that CPL article 245 does not require them to obtain or produce unrelated department Internal Affairs Bureau (IAB) files on police witnesses. The Suffolk County Supreme Court concluded: “As to information required to be produced in substantiated and unsubstantiated IAB files, the issue of utilization of this material for impeachment must be determined by the hearing/trial judge, based, inter alia, on the good faith basis for cross-examination relevant to the credibility of the witness. The People thus may seek an limine ruling to preclude any cross examination where the nature of the conduct or the circumstances in which it occurred does not bear logically and reasonably on the witness’s credibility or there is no good faith basis for the inquiry.” The decision in Randolph is the subject of an article by defense attorney Cory Morris, published in the New York Law Journal on Nov. 25, 2020. In that article, he discussed the pushback defenders continue to experience with disclosure of police misconduct records and how defenders are resorting to FOIL, whether on their own initiative, or at the suggestion of the court. He explained: “The People of the state of New York are at a pivotal moment in terms of whether the repeal of Civil Rights Law §50-a will actually have any impact on police misconduct.”
 
If you would like to learn more about using FOIL in criminal cases, NYSDA is hosting a CLE program, Focus on FOIL: The Interplay Between Article 245 Discovery and the Repeal of CVR 50-a, on December 9th from 1:00 to 3:00 pm. More information is available in the program flyer. The program is filling up quickly, so register online today.
 
Governor Proposing Change in Law on Law Enforcement Misconduct and Credentials
The Governor says he will make proposals to close what he called “bureaucratic loopholes” that allow a police officer to maintain law enforcement credentials despite allegations of misconduct. As reported by CBS Albany on Nov. 30, 2020, the Governor referenced a November 29th Albany Times Union story about an officer who was allowed to resign from one police department in 2017, rather than being fired after being accused of inappropriate sexual advances toward women he met while on duty. The officer was able to maintain his law enforcement credentials and apply for jobs at other police departments. As Times Union reporter Brendan Lyons noted, “the case exposes the loopholes that remain four years after the state amended its police certification regulations to prevent officers who are under investigation for misconduct, including potential criminal charges, from resigning or retiring from a department — and avoiding a disciplinary investigation — so they can seek employment at another law enforcement agency.”
 
Face-to-Face Contact with Children in Foster Care Essential
The Office of Children and Family Services (OCFS) issued an informational letter to local DSS offices throughout the state reminding them of the regulatory requirement that caseworkers have face-to-face contact with children in foster care, and that such contact be contemporaneously documented in the child’s file. The November 20th informational letter, 20-OCFS-INF-11, states in part that, “Casework contacts with children in foster care are an essential casework activity that promotes the safety, well-being, and permanency of children. Following the first 30 days of placement in foster care, children should be seen every 30 days, at a minimum. However, it is strongly recommended that children are seen as frequently as necessary and possible, as research indicates that the more casework contacts the better the outcomes are for children. It is vital that required casework contacts are occurring and that details of these contacts are being documented contemporaneously, which means documenting information within 30 days from when the event occurred. Additionally, diligent oversight and supervision of such casework activity is expected as this also further promotes the safety and well-being of children in foster care.” [Footnote omitted.] It should be noted that while federal law does require caseworkers to have face-to-face contact, in light of the pandemic, the Administration for Children and Families updated its guidance in March 2020 to allow for video-conferencing, as referenced in the informational letter.
 
HALTing Solitary Could Save Lives AND Money, Report Indicates
Restricting the use of solitary confinement in jails and prison is the goal of advocates and legislators supporting the Humane Alternatives to Long-Term (HALT) Solitary Confinement Act. Recently, the Partnership for the Public Good announced a fiscal analysis indicating that implementation of the HALT Act could save the State and localities $132 million a year. The report posits savings from reductions in lawsuit settlements and medical costs and closing of physical spaces used for isolation, as well as from anticipated reductions in incarceration rates. The latter is expected from ending reliance on solitary, which causes harm that exacerbates problems, and implementing programs to take the place of solitary that more successfully address problems, including violence.
 
Risk Assessment Tools: Recent Reports
Use of risk assessment instruments that purport to measure a person’s likelihood of engaging in certain behavior—to predict their future actions—remains a factor in discussions about and implementation of bail practices and other areas of the legal system. On Oct. 29, 2020, the Colorado ACLU issued a letter highlighting some “underreported and concerning findings” of a validation study dealing with a risk assessment tool called the Colorado Pretrial Assessment Tool (CPAT) and a new version, the CPAT-R. The ACLUCO letter says the study points to not only racial discrimination in the tools, but “concludes, as advocates have long urged, that the CPAT is unfairly biased against people experiencing homelessness.” Also criticized is the overemphasis on failure to appear, which is often “non-willful or due to no fault of the defendant” [footnote omitted], and the glossing over of flight from prosecution as a key concern. And other concerns are noted including that the CPAT’s “‘higher risk’ categories are wildly misleading.”
 
The Pretrial Justice Institute (PJI) also issued a new paper in November that makes “The Case Against Pretrial Risk Assessment Instruments.” The paper follows PJI’s statement earlier this year rejecting its earlier endorsement of risk assessment instruments, noted in the Feb. 12, 2020, edition of News Picks. The PJI and ACLUCO documents may provide insights for ongoing discussions in New York about pretrial release and other proceedings in which risk assessment tools may be used.
 
New Legislation Requires Juvenile Interrogations to be Recorded
The New York State legislature passed a juvenile interrogation recording bill during the pandemic-shortened summer session, and it was signed into law by the Governor on Nov. 27, 2020 (L 2020, ch 299). The new law requires the video and audio recording of interrogations of juveniles in all juvenile delinquency proceedings. The law amends Family Court Act 305.2 and 344.2 and reads in part: “Where a child is subject to interrogation at a facility designated by the chief administrator of the courts as a suitable place for the questioning of juveniles …, the entire interrogation, including the giving of any required notice to the child as to his or her rights and the child’s waiver of any rights, shall be video recorded in a manner consistent with standards established by rule of the division of criminal justice services …. The interrogation shall be recorded in a manner such that the persons in the recording are identifiable and the speech is intelligible. A copy of the recording shall be subject to discovery ….” This law takes effect on Nov. 1, 2021.
 
OCA Announces RFP to Fill the Need for “Raise the Age” AFCs Outside NYC
The Unified Court System Office of Court Administration’s (OCA) Division of Professional and Court Service just announced a Request for Proposals (RFP) to award one five-year contract in each of the State’s 57 non-New York City counties to fund the “Juvenile Defense of Minors Ages 7-17.” Eligible applicants are “non-profit legal aid society organizations or units of local government (i.e. Public Defender Offices).” The purpose of the RFP is to address the increased need for qualified AFCs, resulting from the “Raise the Age” legislation, for the following types of cases: “Person In Need of Supervision, Juvenile Delinquency, Juvenile Offense and Adolescent Offense proceedings in Family Court, and in those cases that originate in the Youth Part of the superior court and are removed to the Family Court.” Further information on the RFP, including how to apply, can be found here. The RFP was announced on December 2nd, and applications are due no later than Wednesday, Jan. 6, 2021 at 2:00 pm.

Association News

Written Testimony on Judiciary Budget Cuts Available
NYSDA presented written testimony to the Assembly Judiciary Committee for its hearing on Budget and Staffing Reductions in the Judiciary Branch. Executive Director Susan C. Bryant’s oral testimony was noted in the last edition of News Picks.