DCJS Memo Makes Clear Defense Counsel Must Receive Criminal History Reports
As detailed in the January 14th edition of News Picks, Governor Hochul’s veto message to the “qualified agencies” bill directed the Division of Criminal Justice Services (DCJS) to issue a memorandum to the Office of Court Administration (OCA) making explicit that defense counsel is authorized to receive their client’s criminal history report.
 
That directive, manifested in a February 1st memo from DCJS to OCA, reiterated its position that if the court or an arresting agency obtains a name-based (as opposed to fingerprint-based) criminal history at arraignment, defense counsel is authorized to receive and retain that report. DCJS went on to specify that defense counsel does not need to return the report at the end of the arraignment. The memo does note that, if the fingerprint-based report is not available at arraignment, the court (pursuant to CPL 150.70) must direct that the defendant be fingerprinted and the fingerprint-based criminal history report should replace the name-based report as soon as it is available.
 
Injunction Sought for Assigned Counsel Pay Raise; Chief Judge Calls for Action
As reported in the New York Law Journal, attorneys from Kramer Levin, representing ten bar associations, filed an order to immediately raise the current rates for assigned counsel to $158, in line with federal court rates.
 
As discussed in the December 10 edition of News Picks, the lawsuit was originally filed in July 2021. The plaintiffs argue that by not raising assigned counsel rates for nearly 20 years, the constitutional right to effective legal representation in criminal and family court is compromised.
 
During Wednesday’s 2022 State of Our Judiciary address, Chief Judge DiFiore said that an assigned counsel rate increase “is urgently needed to replenish the assigned counsel program and support the efficient operation of th[e] busy [criminal and family] courts.” She noted that “[t]he failure of our state’s funding scheme to keep pace with any reasonable semblance of inflation has led to a statewide mass exodus of qualified assigned counsel available to take on new assignments.” She went on to say: “This situation not only impairs court operations but harms countless litigants who are subjected to delays in the assignment of counsel, repeated adjournments of their proceedings, fewer opportunities and less time to meaningfully consult with counsel, and an overall substandard quality of representation that contributes directly to the inequitable, dehumanizing conditions identified in Secretary Johnson’s Report.”
 
Newly Released Second Edition of SORA Practice 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. Attorneys who would like a print copy of the resource should contact the Backup Center.
 
Joint Report Highlights a Family Court in Crisis
As reported by The New York Law Journal, The Imprint, and several other news organizations, the New York City Bar Association and The Fund for Modern Court published a joint report highlighting what family court defenders already know to be true. The family court system, both in and outside of New York City, is fatally flawed, and it is to the detriment of all who come in contact with it, especially families of color and those who are poor.
 
The main takeaway from the report, entitled “The Impact of COVID-19 on the New York City Family Court: Recommendations on Improving Access to Justice for All Litigants,” is “the urgent need to modernize the Family Court and bring it up to at least the level of … the Supreme Court.” According to the report, “[t]he lack of electronic filing was crippling during the pandemic but even in normal times, it is still unacceptable for litigants not to have immediate access to documents and court orders. During the pandemic, the lack of effective remote access to court proceedings, including access to a Help Center and an effective website, meant that many litigants were shut out of Court, facing lengthy delays without knowing the status of court operations. But this lack of technology, adequate staffing and uniform rules were all problems that existed for decades prior to the COVID-19 pandemic.”
 
To further highlight the pervasive systemic issues that exist, the report referenced the October 2020 “Report from the Special Adviser on Equal Justice in New York State Courts.” The Special Adviser’s report stated: “[I]n one form or another, multiple interviewees from all perspectives still complain about an under-resourced, over-burdened New York State court system, the dehumanizing effect it has on litigants, and the disparate impact of all this on people of color. Housing, Family, Civil and Criminal courts of New York City … continue to be faced with extremely high volumes of cases, fewer resources to hear those cases and aging facilities. .…The sad picture that emerges is, in effect, a second-class system of justice for people of color in New York State.” That report was discussed in the Oct. 20, 2020, issue of News Picks.
 
As reported by NBC New York, in response to the findings in this recent report, Senate Judiciary Chair Brad Hoylman and Assembly Judiciary Chair Charles Lavine have vowed to advocate for legislation that would add more judges to the extremely shorthanded family court bench. Legislative action is the only way to permanently add family court judgeships, as opposed to the current practice of borrowing judges from other courts.
 
Among the report’s recommendations, which are intended as specific actions the court can take immediately, are:
 
  • provide regular statistical reporting on all family court proceedings;
  • build an effective, user-friendly website “that comprehensively informs the public of current court operations and provides guidance to unrepresented litigants”;
  • “enable litigants without access to adequate technology to participate in remote proceedings by providing access to the appropriate technology” and assess the family court system’s needs related to remote proceedings to ensure it has appropriate, current technology;
  • “ensure litigants and attorneys are kept up to date on the status of their cases as well as the status of Court operations generally”;
  • provide enhanced training to judges regarding case management strategies and techniques;
  • move judges, staff, and other resources from other trial courts as necessary and appropriate to tackle backlogs and delays;
  • enact uniform procedural rules, including related to remote participation in proceedings; and
  • engage with stakeholders on a plan for the complete reopening of the family court.
 
People of Color Face Charges of Educational Neglect over COVID-19 Concerns
In yet another example of how the family regulatory system has a disparate impact on poor, Black and brown families, an article from The Guardian highlights how parents in New York City who kept their children home over COVID concerns faced that terrifying knock at their front door from ACS workers over allegations of educational neglect. According to the Jan. 27, 2022, news item, nearly 2,400 such reports were made to the statewide central register (SCR), during the first three months of the 2021-2022 school year. This is despite joint guidance issued by ACS and the Department of Education, urging schools to exercise caution before making these potentially life changing reports.
 
The guidance, entitled “Educational Neglect: Prevention and Intervention During the COVID-19 Pandemic,” states in part that “[b]efore escalating a concern around a student’s excessive absences or making a report to the New York Statewide Central Register (SCR) if educational neglect is suspected, … school staff must exhaust all outreach efforts”. It continues, “[o]utreach efforts should include conducting outreach to the family at different times of the day through multiple means, including phone calls, emails, letters and home visits.” Additionally, “[a]s part of the outreach process, schools should assess what circumstances or barriers are contributing to the student’s absence and determine if there are any barriers the school can help address directly or through a referral to services, such as transportation, guidance interviews, prevention services, help navigating public benefits like food or cash assistance, child care assistance, etc.”
 
Family court defenders are reminded that effective Jan. 1, 2022, new laws regarding the SCR went into effect that, among other things, change both the burden of proof before an indicated report can be established, as well as shorten the length of time that some indicated reports remain on the SCR. See the Jan. 14, 2022, edition of News Picks for more information about the changes. NYSDA will be holding a training on the changes to the SCR on Mar. 3, 2022. For more information, please see Association News below.
 
WNY RIAC February 2022 Newsletter
In its February 2022 newsletter, the Western New York Regional Immigration Assistance Center (WNY RIAC) features a roundup of information and updates related to immigration consequences in criminal and family courts. Included is a strategic advisory for resolving VTL 1192 (4) [DWAI Drugs] charges to avoid removability. There is a reference to a NYSDA News Picks item from Dec. 23, 2021, regarding equal protection rights in juvenile delinquency proceedings for pre-trial discovery and impeachment materials critical in the representation of non-citizens as violations of orders of protection may provide grounds for removability even in the absence of a criminal conviction. The issue also includes other updates and an index to prior issues of the WNY RIAC Newsletters.
 
Town of Greenburgh Sued for Police Department Disciplinary Records
Gannett, the media company that owns USA Today as well as Rochester’s Democrat and Chronicle, has sued the town of Greenburgh for failure to comply with a May 2021 Freedom of Information Law request for police officer disciplinary records. Greenburgh’s opposition has rested on the notion that records created prior to 50-a’s repeal are still immune to FOIL requests. Gannett also has an ongoing lawsuit against the village of Herkimer on similar grounds. More coverage is available from LoHud.
 
Column Discusses Prosecution Press Tactics
In a February 7th ethics column in the New York Law Journal, Joel Cohen discusses the “inordinate capacity” of prosecutors’ press conferences and press releases “to influence public opinion against the accused” despite inclusion of a requisite statement “that an indictment is not proof of guilt.” But the public seems to want information about criminal charges, he says, and press conferences seem “here to stay.” Citing Rule 3.6 of the New York Rules of Professional Conduct, and its American Bar Association (ABA) counterpart, he notes that disciplinary rules require “basically, forbearance.” Noting scholarly articles and pointing to examples of troubling press-related prosecution behavior, he concludes with an exhortation against prosecutors sharing their podiums with family members or lawyers speaking about the victims’ point of view.
 
A related resource of note is the ABA’s Standards on Criminal Justice volume, "Fair Trial and Public Discourse”. Underlining the column’s timeliness is the inclusion in the proposed Executive Budget of a $1,750,000 appropriation for the still-forming Prosecutorial Conduct Commission. See the Dec. 23, 2021, edition of News Picks.
 
Podcast on Eyewitness Testimony and Forensic Science Evidence
The National Academy of Sciences Issues in Science and Technology has released a podcast interview with senior US District Court Judge Jed Rakoff entitled “Shaky Science in the Courtroom,” discussing how eyewitness testimony and forensic science are relied upon in criminal trials and how exonerations prompted by DNA analysis have revealed weaknesses in these types of evidence. The conversation includes Judge Rakoff’s thoughts on how to reform their use and get stronger science into courtrooms.
 
Defense attorneys with questions about eyewitness identification and forensic evidence issues can contact the Backup Center for assistance. Forensic resources are available on our website at www.nysda.org/page/Forensics.
 
Legal Action Center Offers Issue Briefs on Increasing Access to OUD/SUD via Medicaid
The Legal Action Center (LAC) has posted two issue briefs detailing opportunities to leverage Medicaid to improve access to opioid use disorder/substance use disorder (OUD/SUD) care for people in the criminal legal system. LAC says that the lack of resources for such health care services and medications “has fostered the promulgation of less effective care throughout the criminal legal system.” Efforts to increase access to such care via Medicaid are critical, LAS says, and will strengthen “health and justice outcomes overall.”
 
Aventiv a/k/a JPay a/k/a Securus: Problems from Pell Grants to Phones
According to a Mother Jones article, Aventiv Technologies “appears to be eyeing” the millions of dollars that will become available next year now that “Congress voted to end the ban on Pell Grants—the federal financial aid program available to low-income college students—for incarcerated people.” Aventiv’s subsidiaries include JPay, which provides the tablets used in many prisons, including New York State facilities. Tablet-based education “was long the exception to what JPay would charge for,” the article notes, but now JPay has been telling educational institutions that they will have to start paying to use its educational platform, Lantern. Fears raised by the prospect of increased, for-fee tablet learning goes beyond general concerns about “profiting off the captive market” of incarcerated people and their families. “‘We worry that—particularly when there are profit motivations at play—tablets can act as a trojan horse, moving from supplementing to supplanting in-person college opportunities,’” one educator noted.
 
News about another Aventive subsidiary, Securus Technologies, directly concerns defense lawyers and their clients. Securus provides telephone services in many jails and prisons. Recently, The Maine Monitor exposed recurring instances of state police having accessed calls recorded in jails across that state. The article noted that “whenever attorney calls are released to prosecutors, officials often blame the attorneys for not making sure that their phone numbers are on the jail’s do-not-record list.” The problem seeped into family court as well, with at least one jail releasing calls to the state Office of Child and Family Services. Last April, News Picks informed readers about continuing problems with Securus recording calls in New York City. 



Association News


The 36th Annual Metropolitan Trainer, Friday, March 11, 2022, 9:00 am – 4:30 pm, traditionally held at NYU, will be held virtually again this year due to COVID restrictions and safety considerations. Session topics include: Court of Appeals Update; Crawford & NY Red Flag Laws: Protecting Rights & the Impact of Orders of Protection; NYS Commission on Forensic Science Update; "Opening the Door" After Hemphill v New York; and The Ethical Closing Argument: Drawing the Line Between Zealous Advocacy and Adversarial Excess. The cost of this program is $55 per person $45 for offices registering 5 or more. For details and program registration, click here.

Thursday, March 3, 2022, 2:30 – 4:00 pm: Changes to the State Central Register 2022: A Toolbox for Defenders, with Eileen Choi, Supervising Attorney, Family Defense Practice, Brooklyn Defender Services, and Kelsey Draper, Paralegal Supervisor, Family Defense Practice, Brooklyn Defender Services. The program will provide 1.5 CLE hours in Professional Practice. There is no cost for this program. For details and program registration, click here.

Wednesday, March 16, 2022, 12:00 – 2:15 pm: Strategies for Litigating Sex Abuse Cases in Family Court, with Annie Carney, Supervising Attorney, Family Defense Practice, The Bronx Defenders, and Sophie Spiegel, Senior Staff Attorney, Integrated Defense Practice, Brooklyn Defender Services. The program will provide 2.5 CLE hours in Professional Practice. There is no cost for this program. For details and program registration, click here.

Wednesday, March 23, 2022, 12:00 – 1:30 pm: the Application of the Interstate Compact on the Placement of Children (ICPC) in Article 10 Cases, with Christine Gottlieb, Co-Director, Family Defense Clinic, New York University School of Law, and Amy Mulzer, Senior Staff Attorney for Law and Appeals, Family Defense Practice, Brooklyn Defender Services. This program will provide 1.5 CLE hours in Professional Practice. There is no cost for this program. For details and program registration, click here.

Tuesday, March 29, 2022, 3:00 – 5:00 pm: Representing Youth in Family and Criminal Court Proceedings. Presented in collaboration with the Western New York Regional Immigration Assistance Center (WNY RIAC), this program will be for defense attorneys working with children and youths to understand various criminal and family court proceedings and resulting collateral consequences, including the available civil proceedings to assist unaccompanied migrant children and youths to gain legal immigration status. Details and registration coming soon.