Driver’s License Suspension Reform Act Chapter Amendment Introduced
Following up to our January 11th edition of News Picks, the chapter amendment bill has been introduced and can be viewed here. NYSDA conducted an introductory training session on the new law on January 28th and will be following up soon with an update on practice applications. Information about upcoming NYSDA training programs appears in Association News below and is posted on our statewide training calendar at www.nysda.org/page/NYStatewideTraining.
 
LAS Shares Discovery Guide and “Wardius” Motion Template
The Legal Aid Society’s John Schoeffel and Peter Mitchell have generously shared their 2021 CPL 245 discovery guide and allowed us to make it available to defenders. The extensive guide addresses many issues related to the new discovery law, CPL article 245, including the rollbacks passed last year, and CPL 30.30 and repeal of Civil Rights Law 50-a. The guide is posted on our Discovery Reform webpage.
 
The Legal Aid Society (LAS) has also created a template for a motion to withhold certain defense discovery pursuant to Wardius v Oregon (412 US 470 [1973]) and CPL 245.70(1). The template covers various scenarios in which prosecution withholding of evidence under provisions of CPL article 245 arguably makes forcing defense disclosure unconstitutional. Allowing the prosecution to benefit from compelled defense disclosure of witness information while withholding information about prosecution witnesses amounts to “requiring that trials be a ‘search for truth’ as far as defense witnesses are concerned, but allowing prosecutors to maintain ‘poker-game secrecy’ with respect to their own witnesses” and “is an overt Wardius violation,” the motion says. It sets out arguments that “Wardius defects in Article 245 create ‘constitutional limitations’ that constitute ‘good cause’ for a protective order under §245.70(1) [see C.P.L. §§245.20(4)(a), 245.70(4)].”
 
NYSDA thanks John Schoeffel and Peter Mitchell, and LAS, for sharing these valuable practice resources.
 
CAL Urges Defense Challenges Where Commands to Stop Aren’t Supported by Reasonable Suspicion
Where a client started to walk away from an approaching police officer who then yelled for the client to stop, obedience to the directive should be challenged as an unconstitutional seizure if the officer lacked reasonable suspicion, says the January 2021 edition of “Issues to Develop at Trial” from the Center for Appellate Litigation (CAL). The article sets out the two-pronged test governing seizures, and points out certain Court of Appeals cases that are too-often wrongly cited to support denial of suppression. Those cases can and should be distinguished, CAL asserts. See People v Bora, 83 NY2d 531 (1994) [the defendant fled rather than obeying the command] and People v Reyes, 83 NY2d 945 (1994) [again, no submission to the order]. CAL urges defenders to describe in detail the evidence to be suppressed, cite the state as well as federal constitution, and note the right of individuals in a free society to walk away from police.
 
Prior editions of “Issues to Develop at Trial” are posted on the CAL website. NYSDA thanks CAL for making this resource available to public defenders.
 
Governor Announces Proposals to Reform Forensic Custody Evaluations and the Family Regulatory System
In the 2021 State of the State budget briefing book, Governor Cuomo announced two proposals intended to address inequalities in the family regulatory system and custody evaluations. The first is the creation of the “blue-ribbon commission on forensic custody evaluations to issue recommendations. The Commission will be composed of judges, court personnel, forensic evaluators, attorneys who represent parties in custody matters, attorneys who represent children, survivors of gender-based violence, domestic violence advocates, and others with knowledge and experience on this topic.” As reported by the Times Union on January 25th, currently “there are no state-issued criteria for writing forensic evaluation reports beyond considering a child’s ‘best psychological interests and well-being,’” causing some to fear for the safety of children caught in the system. These fears have prompted the introduction of several bills from state legislators over the past year, with proposals ranging from eliminating forensic evaluators from the system altogether to making the evaluations less secretive.
 
The other proposal is aimed at the family regulatory system. The proposal is a “multi-pronged approach to create a more just and safe child welfare system for children and youth in New York. This proposal will promote the well-being of youth in foster care and address the disproportionality of black children in the child welfare system ….” Among other things, the proposal would mandate implicit bias training for all child welfare staff, as well as requiring “decision makers to review only the relevant facts, without any information that may reveal the race, socioeconomic background, or sexual orientation/gender identity of the child ….” A growing chorus of parents and advocates have called for the end to systemic racism in the system and an end to the system itself. As reported in the The Imprint Youth & Family News, “[c]alls to dismantle child welfare systems that disproportionately impact Black families grew this week, as a group of roughly 100 parents, lawyers and even city social workers gathered on Martin Luther King Jr. Day beneath a new East Harlem billboard with a confrontational message: ‘Some cops are called caseworkers.’”
 
Consider Joining Your Local Family Court Assigned Counsel Panel
In a piece published in the January 22nd edition of the New York Law Journal, a lawyer sought to shine some light on the importance of joining a family court assigned counsel panel. In the item, entitled “NYS Family Court Assigned Counsel: Why I Joined and Why You Should, Too,” Philip Katz, a partner at the New York City law firm Fink and Katz, writes of what brought him to represent litigants in Family Court who cannot afford to hire a private attorney. “[Y]our local Family Court Assigned Counsel panel needs you if you have the qualifications. You can become an asset to your community as an Assigned Counsel attorney in ways that you could never do so in a typical private practice. Choose to make a difference, fight for families, join your local Family Court Assigned Counsel panel.” For more information about who is eligible for assigned counsel in family court, please visit NYSDA’s Family Defense Resource page.
 
Many family courts throughout the state have a severe shortage of qualified attorneys to represent adults. If you are interested in joining your local panel, please contact the assigned counsel administrator for your county; a list of family public defenders can be found under the PD INFO menu item on NYSDA’s website. If you are not sure who to contact, please reach out to our Family Court Staff Attorney, Kim Bode, at kbode@nysda.org.
 
Making a Parental “Designation”
For defense attorneys who have clients wondering what options are available to them if they are unable to temporarily care for their children, whether it be because of illnesses, or some other unexpected reason, Jessica Prince, Policy Counsel for the Family Defense Practice at the Bronx Defenders, discusses one such option in the Jan. 5, 2021 edition of Rise Magazine. In the article, “Parental Designation: A Way of Planning for the Expected and Unexpected,” Ms. Prince explains how making a “parental designation” under General Obligations Law 5-1551, can be an option for parents who need to make alternative living arrangements for their children without involving ACS/CPS. This is not an option available to everyone, as it does require having a person who is willing and able to take on the responsibility of being a “designee.” The specific requirements for drafting a valid “designation” can be found in General Obligations Law 5-1552. For those preferring a pre-printed form, one can be found here on the NYS Teaches website. NYSDA does not vouch for the accuracy of forms found on other websites. We encourage defenders to do their own independent research before advising their clients.
 
Public Defender Groups Threaten Suit if State Does Not Allow People in Jails and Prisons to Get COVID-19 Vaccine
As reported in Politico on January 28th, “[t]he state has given the green light for correction officers to get the vaccine, but people locked up in state prisons and local jails are not eligible — even as the virus rages inside prisons. In a letter to Cuomo, Legal Aid and other organizations say the restrictions violate the state’s legal obligation to protect the safety of people they hold in custody.” The letter states: “This is deliberate indifference: New York has the ability to protect lives, but lacks the political will.” The letter refers to the recent Essex County Supreme Court decision, discussed below, directing the State “to offer the vaccine” to a 65-year-old inmate with chronic lung disease. “We demand that you change this policy effective immediately and authorize vaccinations for people held in jail and prison custody. If you do not change your policy, we will have no choice but to seek legal remedies for our clients.”
 
Court Orders State to Offer Vaccine to 65-Year-Old in Adirondack Correctional Facility
On Jan. 18, 2021, Essex County Supreme Court Judge Meyer issued a decision ordering the Department of Corrections and Community Supervision to offer the COVID-19 vaccine to a 65-year-old incarcerated man with chronic lung disease. The court converted the proceeding, which sought habeas relief, into a CPLR article 78 proceeding demanding a vaccination.
 
Feds Begin Vaccine Distribution in NYC Federal Detention and Correctional Centers
The New York Daily News reported on January 28th that people detained in the Metropolitan Detention Center and the Metropolitan Correctional Center are in the process of being offered the vaccine. “‘I hope that everyone incarcerated at the MCC and MDC will be offered it (the vaccine) as soon as possible and that the MCC and MDC will be transparent with the court and counsel about how many staff and inmates have been vaccinated,’ said Deirdre Von Dornum, the Attorney-in-Charge of the Federal Defenders in Brooklyn.”
 
Lawsuit Filed After COVID-19 Outbreak in Jails and State Prisons Across the State
As reported in the Buffalo News, The Legal Aid Society has filed suit on behalf of Taiwu Jenkins, who is held at Wende Correctional Facility. “The lawsuit comes as prisoner advocates push for better protections and even early release for inmates, while prison officials seek to reassure those anxious about conditions in the facilities that safeguards are in place.” “‘The medically vulnerable and aging at Wende along with staff members, their families, and the communities to which they return on a daily basis, are in especially grave danger,’ said Heidi Bota, a lawyer for Jenkins, in court papers filed in State Supreme Court.” “The correctional department’s policies, uniform throughout the state’s prisons, ‘are ineffective to control the rapidly increasing number of positive cases,’ Bota said.”
 
The DOCCS COVID-19 report includes information about testing and results in each facility. On January 9th, the Gothamist reported that “[i]n ballooning outbreaks at about a third of the state’s 52 correctional facilities, nine incarcerated people have died in a three-week span and more than 1,000 incarcerated people have been infected in that time ….” The Journal News reported last month that The Legal Aid Society and Relman Colfax PLLC filed a lawsuit challenging the safety of the Adirondack Correctional Facility, where the State “effectively creat[ed] a ‘prison nursing home’ ….” The federal class action suit “filed on behalf of dozens of older and medically vulnerable inmates accused New York of ‘deliberate indifference’ in its treatment of them at an upstate prison lacking basic protocols to curb the virus.”
 
Albany County Jail on Lockdown After COVID-19 Outbreak
As reported by CBS6Albany, and in the Times Union, the Albany County Jail went on lockdown in mid-January. In a follow-up piece by CBS6Albany, according to Sherriff Craig Apple, “around 60 inmates and 25 correctional officers have tested positive. 270 out of the jail[']s roughly 330 inmates are in quarantine. Apple says he doesn’t know if some of the officers might have brought it in or if the virus was transmitted by" someone newly incarcerated.
 
Pandemic Bar on Transport to Willard Leads to Habeas Release
A Cortland County Supreme Court judge ordered that a person who was held in the county jail for a parole violation and who had been “‘revoked and restored,’ subject to successful completion of the Willard Drug Treatment Program,” would have to be released if not transported to the Willard campus within 10 days. Transport to Willard had been halted due to COVID-19, leaving the person detained indefinitely. NYSDA thanks the Cortland County Public Defender Office and Assistant Public Defender Kayla Hardesty for sharing the court’s decision.
 
NYSDA is hearing reports that DOCCS is directing local jails to release people after 90 days if they were on parole and sentenced to Willard, but could not be transferred due to COVID-19. Defenders with clients who have been sentenced, but not transferred, should follow up to see if they can be released. If you encounter pushback or release is denied, please share this information with the Backup Center.
 
Deals Being Made to Conceal Police Misconduct Records 
As reported by the Poughkeepsie Journal, “[s]ome New York local governments are creating an avenue for police officers and their unions to try to block or obscure the release of civilian complaints and other disciplinary records despite a new state law meant to ensure they are public. The Town of Hyde Park and Village of Wappingers Falls in Dutchess County have entered into written agreements with their local police unions, granting officers the right to object to the release of their disciplinary records or personnel file before they are provided to the member of the public that requested them.” The article noted that “[t]he Committee on Open Government, a state entity that weighs in on state transparency laws, also states the obligations of state law trumps what’s in these local agreements.”
 
In response to the news report of these deals, the Schenectady Gazette published an editorial, entitled “No deals on release of police records” which said: “Before this becomes a common practice, lawmakers and the courts need to step in and tell them that the public’s right to know is not up for negotiation.” The Times Union recently reported on the contents of a Schenectady police officer’s disciplinary file, which the local police union had tried to keep from being released under the Freedom of Information Law.
 
The New York Civil Liberties Union (NYCLU) issued a press release discussing the motion the NYCLU and Shearman & Sterling LLP filed “to intervene in a lawsuit brought by the Rochester Police Locust Club seeking an indeterminate delay in the City of Rochester’s production of any police officer disciplinary records. The union argues for a lengthy redaction process under the control of the police officers’ collective bargaining representatives, a procedure that would impair and delay the public’s right to disciplinary records following the repeal of 50-a.” Disclosure of police officer disciplinary records are critical. Over the weekend, an article published in the Democrat and Chronicle posts body cam footage of Rochester Police Department handcuffing and pepper spraying a nine year old girl.
 
The Times Union reported that an Albany County Supreme Court judge awarded attorney fees after the City of Albany failed to turn over materials that should have been released under FOIL. “Lewis B. Oliver, Jr., one of Hawkins’ attorneys, said the lawsuit and order for attorneys’ fees was the only way to make the city obey the law about public access to dash-cam and body-cam videos.”
 
Appeals Court Rules NYPD Must Turn Over Traffic Accident Records to Media
The New York Law Journal reported that a unanimous First Department panel has ruled that under the Freedom of Information Law, the New York City Police Department must turn over records related to a traffic accident, saying it failed to meet its “‘burden of showing a particularized justification for withholding the records … pursuant to the interference [with judicial proceedings] exemption” to FOIL.
 
NYSDA Memo on Eligibility Provided to Chief Defenders
Following inquiries, NYSDA recently provided to Chief Defenders its annual memo, “Making an Informed Eligibility Determination.” The memo, which includes updated information—for reference only—on the Legal Services Corporation (LSC) income guidelines, refers readers to the NYS Office of Indigent Legal Services (ILS) 2016 Criteria and Guidelines for Determining Assigned Counsel Eligibility. As NYSDA’s memo stresses, ILS’s 2016 guidelines say applicants with net income at or below 250% of the Federal Poverty Guidelines are to be deemed presumptively eligible for public defense representation; many factors must be considered before a person making a higher income can be deemed ineligible. A footnote in NYSDA’s memo observes that the ILS Board approved guidelines in December that will cover Family Court eligibility determinations, and publication is anticipated in coming weeks.

 
Association News
 
Webpages on Forensics, Juvenile Defense Added to Website
Two new webpages have been added to the list of information available under the “resources” menu item on NYSDA’s website, www.nysda.org. One webpage reflects the growing recognition that representing youth in any and all courts presents special challenges and that Raise the Age legislation has procedurally complicated representation as defenders and court systems adapt. https://www.nysda.org/page/JuvenileDefense. The other webpage reflects the ongoing importance of forensic evidence in both criminal and family courts. https://www.nysda.org/page/Forensics. Website users are encouraged to suggest additions to these and other webpages.
 
NYSDA Mourns the Passing of Staff Member Dawn Allert
Long-time NYSDA staff member Dawn Allert died on Jan. 20, 2021, after contracting COVID-19. Her duties at the Backup Center included managing and supporting the Association’s membership program, and many members will recall having spoken by phone or communicated by email with her. As news of her death spread, NYSDA heard from members and others that Dawn had been wonderful in her interactions with them.
 
The obituary for Dawn reflects what everyone who worked with or knew her realized—her family was a central part of her life. NYSDA offers sincere condolences to her husband Lou, her children and grandchildren, and the extended family. We also acknowledge and appreciate the sentiment expressed at the end of her obituary: “Dawn’s family asks that in her honor please, stay safe and wear a mask!” To say that she will be missed is an understatement; to invoke her life in efforts to keep others safe is so very appropriate.

Final 2020 Issue of the Backup Center REPORT is Online
The October-December 2020 issue of NYSDA’s newsletter, the Public Defense Backup Center REPORT, is now available on the NYSDA website. NYSDA members will receive a hard copy of the issue when printing and mailing is completed. If you have any questions, please contact the Backup Center at 518-465-3524.

 
Upcoming NYSDA Online Trainings
 
February 2, 2021, 1:00-2:45 pm: Tips & Tactics on Grand Jury Practice with Jill Paperno, First Assistant, Monroe County Public Defender’s Office. Details about the program are available here; today is the last day to register.
 
February 19, 2021, 1:00- 3:00 pm: Understanding Your Foreign-born Client: Refugee and Immigrant Communities and Their Perspectives of the US Criminal Justice System and Court-ordered Treatment, presented with the Legal Aid Bureau of Buffalo and the Western New York Regional Immigration Assistance Center. Details about the program are available here.
 
March 5, 2021: 35th Annual Metropolitan Trainer. The details about this full-day program and registration information are coming soon.
 
March 11, 2021: Experts 101: The Who, What and How of Medical Experts, presented in conjunction with Nurses for Social Justice. The program details and registration information are coming soon.
 
March 18, 2021: Use of an Expert in DVSJA Cases with Karlijn Kuijpers, Senior Research Associate, New York State Office of Indigent Legal Services, and Alan Rosenthal, Attorney at Law. The program details and registration information are coming soon.