News Picks from NYSDA Staff
February 22, 2021
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ILS Releases Long Anticipated Family Court Eligibility Standards
On February 16th, the Office of Indigent Legal Services (ILS) released the long-awaited eligibility standards for mandated representation in family court cases. The new standards, entitled Criteria and Procedures for Determining Assigned Counsel Eligibility, combine the family court and criminal standards into one. ILS explains its decision not to issue two separate standards on page 9 of the new standards: “In 2016, ILS noted its intent to issue separate Standards relating specifically to financial eligibility for family court mandated representation in compliance with its statutory duty under Executive Law § 832(3)(c). As further documented by the information received through public hearings held in 2019, written commentary, and surveys, as well as thorough analysis of the original criteria and procedures, ILS has determined that, as herein revised, the standards issued in 2016 are appropriately applicable to all mandated representation. Thus, separate standards are not necessary for determining eligibility for assigned counsel in family court cases.”
The standards issued in 2016 largely remain the same; however, significant additions have been made in order to make it relevant to family court practice. By far, the most significant additions are ones that have been long advocated for by parents, advocates, and defenders alike, and relate to the protection of liberty interests in family court. The highlights are below. To the extent that the new standards may lead to increased costs for the provision of counsel, this is an additional reason that NYSDA strongly supports ILS’s state budget request that $5 million be provided for parental representation.
- Counsel shall be provided for parents in child welfare proceedings during a child protective agency investigation and sufficiently in advance of their first court appearance;
- “Where a petition or pre-petition request has been filed under Family Court Act Article 10 for an order for immediate removal of a child or temporary order of protection, a person who is a parent or legally responsible person, as defined by law, shall be entitled to immediate representation by counsel.”;
- Counsel shall be provided for applicants whenever they have not obtained counsel prior to a proceeding which may result in their detention;
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In all Family Court mandated representation cases, counsel shall be assigned at the first court appearance or be provided immediately following the request for counsel, whichever is earlier;
- Eligibility determinations shall be done in a timely fashion so that representation by counsel is not delayed.
ILS Director Leahy Retiring
William J. Leahy, who has served as Director of the NYS Office of Indigent Legal Services (ILS) since its inception, announced on Feb. 12, 2021, that he is retiring effective June 1, 2021. Leahy had presented testimony at a legislative budget hearing just two days earlier, which included support for NYSDA’s funding. We appreciate the continued support of ILS, and hope to maintain close ties in the future as our two organizations work to improve the quality of public defense statewide. And we congratulate Bill and wish him the very best!
The announcement came near the end of Leahy’s second full term. As reported by NYSDA when Leahy was appointed, then-Chief Judge Jonathan Lippman had noted in his 2011 State of the Judiciary address that Leahy’s selection came after a national search. NYSDA urges the ILS Board to again look broadly for the ideal candidate for this vital position. Independence of the public defense function is THE key to quality representation, as is noted in both New York and national standards; selection of those who head public defense organizations—whether oversight entities like ILS or providers of direct representation—must reflect and ensure such independence. The 2011 announcement of Leahy’s selection also included a pledge that the ILS Board and Office would work to ensure quality of public defense, “[g]uided by nationally recognized principles for a strong public defense delivery system ….” NYSDA anticipates that the ILS Board and the Governor will honor such principles, including independence, in selecting a new Director.
Fourth Department Modifies Vet’s Sentence Based on Service-Related Mitigation
Consecutive sentences imposed on an Army veteran for convictions on several burglary counts and possession of stolen property were modified by the Fourth Department to run concurrently. The appellate court agreed with the defense contention “that the imposition of consecutive sentences with respect to each count renders the sentence unduly harsh and severe considering, inter alia, defendant’s opiate addiction resulting from injuries he sustained while serving in the United States Army, his struggles with mental illness, and his acceptance of responsibility and show of remorse.” The decision in People v Cordon (2021 NY Slip Op 00751 [2/5/2021]) appears to be “the first appellate level case in NY to acknowledge military service as a legitimate mitigator in sentencing” according to Gary Horton, Director of NYSDA’s Veterans Defense Program.
Second Circuit Affirms SDNY Ruling, Rejects Challenge By Police Unions to Release of Disciplinary Records
On Tuesday, Feb. 16, 2021, the Second Circuit issued its decision in a challenge by various unions, including police unions, to New York City’s planned release of disciplinary records after the repeal of Civil Rights Law 50-a. The District Court had denied in substantial part the plaintiffs’ request for a preliminary injunction. The Second Circuit affirmed. It found that the lower court “did not abuse its discretion when it determined that the asserted harm was speculative and that the Unions had failed to demonstrate on this record that the officers will suffer irreparable harm to their employment opportunities that cannot be remedied by an award of lost wages.” The Court also found that the District Court did not abuse its discretion when it found that the plaintiffs did not sufficiently demonstrate the general assertion that “dangers and risks are likely to increase because of the City’s planned disclosures,” noting that “many other States make similar misconduct records at least partially available to the public without any evidence of a resulting increase of danger to police officers.” Additionally, the Court concluded that “[t]he Unions have not raised sufficiently serious questions on the merits of their claims.”
The Legal Aid Society, one of the organizations to file an amicus brief with the District Court, released a statement about the Second Circuit’s decision: “This decision rightfully rejects the police unions’ baseless attempts to undermine the Legislature’s decisive repeal of Police Secrecy Law 50-a and to continue hiding records of police discipline and misconduct. To live up to the values of transparency and accountability underlying that repeal, the City can and should immediately proceed with its plans to make police misconduct records accessible to the public, as promised by Mayor Bill de Blasio last summer. ”News outlets began to cover the court’s decision on Feb.16, 2021, including The New York Times, The Gothamist, The Wall Street Journal, Law and Crime, and the New York Daily News, who reported “The New York Civil Liberties Union has already posted more than 300,000 CCRB complaints against officers. The new ruling will apply to a larger batch of documents.”
Resistance to disclosing police misconduct records and related materials previously concealed under 50-a has been fierce across the state.
Newsday sues Nassau County Police Department to release police discipline records
The lawsuit was discussed in an article in Newsday on Feb. 13, 2021, quoting sections of their filing that says “‘Newsday wants to inform and educate the public about the processes and standards of police discipline so that the public can judge whether law enforcement agencies operate in the best interest of police officers and the general public.’”
EDITORIAL: Albany must lay down the law on police disciplinary records
Published in the Buffalo News on Feb. 13, 2021, this editorial states: “The state Legislature plainly needs to strengthen consequences to municipalities that impede access to law enforcement disciplinary records. Starting with the Town of Tonawanda. Town police have refused to provide video evidence in a situation involving Police Officer Michael G. Lewandowski. The News requested the legally obtainable footage and is still waiting to receive it. That is not how this is supposed to work. The state last year repealed Section 50-a of state Civil Rights Law, which allowed police and municipalities to conceal police misconduct, and allegations of misconduct. Albany acted properly in repealing the section of the law following the killing of George Floyd by a Minneapolis police officer. The change offers the opportunity for the public, which has every right to know, to view disciplinary records. In this case, the public’s rights involve video footage.”
ProPublica’s “NYPD Files” Wins John Jay College/Harry Frank Guggenheim Award for Excellence in Criminal Justice Reporting
A news release published by ProPublica discusses the incident that initiated the project that resulted in the above-referenced award for its series and resulting database. “The database, called ‘The NYPD Files,’ made public thousands of police discipline records that New York kept secret for decades. It provided an unprecedented picture of civilians’ complaints of abuse by NYPD officers. According to the records, more than 200 officers still working at the NYPD have had five or more substantiated allegations against them. There are nearly 5,000 allegations of ‘physical force’ and more than 600 of ‘gun pointed.’ Readers can search police complaints and use the information to request details on cases from the CCRB. ProPublica also made the data available for download by anyone.”
City of Rochester Launches its Public Database of Police Discipline Records
In a Democrat and Chronicle article on Feb. 11, 2021, information was released about the City of Rochester’s new police disciplinary records database. “The city of Rochester launched its public database of online police disciplinary files Thursday after reaching an agreement to settle a pending lawsuit with the Rochester Police Locust Club union. The database publishes the disciplinary records of all current RPD officers who have such a record on file, according to a statement released by the city.” The database is available at https://www.cityofrochester.gov/policediscipline/.
Family Court Defenders Urge Family Regulatory Reform
On February 11th, a group of family defender organizations from around New York State, including NYSDA, sent a letter to Governor Andrew Cuomo, Senate Majority Leader Andrea Stewart-Cousins, and Assembly Speaker Carl Heastie, seeking to have the defenders’ legislative priorities addressed. An article about the letter appeared on Law360 on Feb. 19, 2021.
These family court defenders “seek to shrink the state’s foster system while offering families and communities the support and resources they need to raise the next generation of New Yorkers.” Among their legislative priorities to reform a family regulation system “shaped by structural racism” are bills to:
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Prohibit Non-Consensual Drug and Alcohol Testing and Screening of Pregnant and Perinatal People and Newborns – S7955 (Montgomery) / A5478-A (Rosenthal) [2019-2020 Legislative Session];
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Require Caseworkers Investigating Child Maltreatment to Notify Parents and Caretakers of Their Rights – S7553-A (Montgomery) / A9841 (Wright) [2019-2020 Legislative Session];
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Require Non-Mandated Callers Making Reports of Suspected Child Maltreatment to Provide Their Name and Contact Information - S5572 (Montgomery) [2019-2020 Legislative Session];
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Give Judges in Article 10 Matters the Discretion to Grant Adjournments in Contemplation of Dismissal (ACDs) - S6214 (Montgomery) / A11022 (Weinstein) [2019-2020 Legislative Session];
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Allow Post-termination Contact Between Children and Their Birth Parents or Siblings in Termination of Parental Rights Proceedings When in the Best Interest of the Child - S4203 (Savino) / A2199 (Joyner) [previously passed by the Legislature and vetoed by the Governor in 2019].
ACS Accused of Ordering Firing of Outspoken Critic and Parent Advocate
As reported by THE CITY on February 16th, “[p]ressure from the Administration for Children’s Services [ACS] led a nonprofit service provider to fire an employee over activism and social media posts that criticized the city agency ….” The employee, Joyce McMillan, who is an activist and frequent critic of ACS, was fired from her job at Sinergia, which helps people with developmental disabilities and their families. According to the article, McMillan “is a coordinator for the nonprofit’s We Are Parents Too (WAPT) program, which is funded through a … contract with ACS.” In addition to her work through Sinergia, McMillan is a strong advocate for parents’ rights and seeks to completely overhaul the current child welfare system. Her website, Jmacforfamilies.com, lists as its mission, “[t]o abolish the current punitive and harmful child welfare system while simultaneously creating a system that truly supports families, building community and changing the narrative.” According to THE CITY, McMillan is back at work at Sinergia, and ACS denies any responsibility for her firing.
As part of McMillan’s efforts to reform the child welfare system, she formed the Parent Legislative Action Network (PLAN), which is a “coalition of parents directly impacted by the child welfare system, attorneys, social workers and academia that are committed to reducing and eventually ending the child welfare system harms and transforming the way society supports families.” The group advocated for the passage of the reform to the State’s Central Registry (SCR) that passed as part of last year’s state budget. As reported in the Apr. 8, 2020, edition of News Picks, the legislation both raises the standard of proof before someone can be placed on the SCR from the bare minimum standard of some credible evidence to a preponderance of the evidence, and, in some cases, shortens the period of time that their names appear.
City & State New York named McMillan as one of its 2021 Nonprofit Power 100. NYSDA congratulates McMillan on this recognition and applauds her work on behalf of families throughout New York.
Court System’s Police STAT Act Data Updated Monthly; Data through January 2021 Available
As noted in the Dec. 23, 2020, edition of News Picks from NYSDA Staff, the Office of Court Administration is now publishing data required under the Police STAT Act, L 2020, ch 102 (amending CPL 10.40 and Judiciary Law 212[2]). The data is updated on a monthly basis and now includes data from cases that have been arraigned between Nov. 1, 2020 and Jan. 31, 2021. The dataset now includes almost 64,000 individual entries.
As noted on the home page for the data, https://ww2.nycourts.gov/oca-stat-act-31371, the information comes from the state’s town and village courts (finger-printable offenses only), 61 city courts, 2 district courts, and 57 county courts (including Supreme Criminal Terms), as well as the New York City criminal courts, community courts, and supreme courts (criminal terms). The site also notes: “Covid has resulted in the rescheduling of arraignments for a significant number of Desk Appearance Ticket (DAT) and summons cases. Therefore, these cases will not be included on the extract until they have been arraigned.”
Unified Court System Issues Anti-Discrimination and Anti-Harassment Policy
Chief Judge Janet DiFiore included in her February 8th message a discussion of a Feb. 3, 2021, memo, “Further Addressing Bias in the Court System.” That memo announced the “Unified Court System Anti-Discrimination and Anti-Harassment Policy,” stressing that recommendations in last year’s “Report from the Special Adviser on Equal Justice in the New York State Courts“ are being implemented. Henceforth, a full disciplinary hearing—not settlement though stipulated penalties without a hearing—must be held “in all matters where the Inspector General has investigated and substantiated a claim of discriminatory conduct by one of our employees.” NYSDA, which issued a statement welcoming the Special Advisor’s report, is heartened to see concrete steps being taken to penalize and prevent racial (and other forms of) bias.
Reminder: People Who Are Incarcerated Are Eligible for Stimulus Payment
There seems to be no further question about the eligibility of people who are incarcerated for government payments intended to combat the economic effect of the COVID-19 pandemic. As noted in the Oct. 20, 2020, edition of News Picks, a court ruling ended the federal government’s efforts to withhold 2020 Cares Act payments from people in prison. A syracuse.com article quotes the IRS website, “An incarcerated individual may be issued a payment if all eligibility requirements are met and the individual filed a 2019 tax return that was processed by the IRS.” The article also says that incarcerated people “who are eligible for either of the payments but did not receive them may claim them under the 2020 Recovery Rebate Credit on line 30 of Form 1040 on their 2020 tax return.”
Association News
Upcoming NYSDA Online Trainings
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March 5th, 9:00 am -- 4:00 pm: 35th Annual Metropolitan Trainer The program will address a number of criminal topics: “Court of Appeals Update”; “Bail 2021: Remand, Release, and Everything in Between”; “Raise the Age Practice Update”; “Ethical Considerations in Decision-Making with Younger Clients”. The program is $55/person or $45/person for groups of 5+. Tuition assistance is available; please email training@nysda.org for more information. To register, click here.
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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.
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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.
Summit: “Pathways to a New Culture of Accountability in State Criminal Justice”
On Friday, Feb. 26, 2021, It Could Happen to You (ICHTY) and the Jeffrey Deskovic Foundation for Justice are hosting a virtual gathering to engage in strategic discussions about criminal justice accountability. Among the several panels will be one whose panelists include NYSDA Board President John Turi; the discussion will focus on the expansion of video recording of law enforcement interrogations. Other topics include raising the wages of people who are incarcerated, parole reform, reform of 440 relief, and “The Powers and Procedures of the NY State Commission on Prosecutorial Conduct and the Commission Budget.” That Commission has long been ICHTY’s signature issue. There will also be a discussion of “Investigating Who Killed Garret Phillips.” Those wishing to attend can register here.
Bryant Testifies in Support of Public Defense Funding, Bills, at Budget Hearing
NYSDA’s Executive Director, Susan C. Bryant, testified at a hearing on the Public Protection Budget before the NYS Senate Finance Committee and the Assembly Ways and Means Committee on Feb. 10, 2021. Her written testimony in support of funding for public defense services, including NYSDA’s Backup Center and Veterans Defense Program, can be read here. That testimony notes the importance of public defense to racial justice and the well-being of the State’s legal system. She also presented NYSDA’s opposition to the extension of virtual/remote court appearances for arraignments beyond the COVID-19 crisis, as proposed in Part J of the Executive’s Article VII bill. Bryant urged legislative caution in considering the Executive’s proposal to allow contiguous counties to share jails, which can present issues of due process and interference with necessary services. And she asked the Legislature “to ensure equity and inclusivity in the commercial sale and regulation of marihuana by passing the Marihuana Regulation and Taxation Act (MRTA), S.854/A.1248, without any damaging amendments,” opposing the Executive’s Cannabis Regulation and Taxation Act. NYSDA will be providing information about other proposals as the session progresses, Bryant said. Her oral testimony focused on NYSDA’s own budget needs; that can be seen here (beginning at 9:41:49).
Immediately following Bryant was Laurette Mulry, President of the Chief Defenders Association of New York, who focused her testimony on opposition to the Governor’s proposed extension of virtual arraignments.
Diehl Tells Legislators VDP’s Work and Impact Warrant Continued Funding
Roy M. Diehl, Deputy Director of NYSDA’s Veterans Defense Program (VDP), provided testimony on February 9th before the Assembly Ways and Means Committee and the Senate Finance Committee, which are considering the Executive Budget Human Services Proposal. Diehl set out VDP’s work on behalf of military veterans and service members whose criminal or family court matters may be affected by their service to their country. He noted that the pandemic has made investigation and mitigation assistance for public defense attorneys and veteran clients much more difficult due to, for example, closures of record repositories and resulting delays in obtaining military records. The Executive’s budget proposal does not include funding for VDP and, as in the past, NYSDA is asking the Legislature to ensure that VDP’s vital work can continue. Diehl’s written testimony can be read here. His oral testimony is available online (beginning at 6:37:00).
Defender Organizations Advocate for Public Defense Funding and Reforms
NYSDA, with the Chief Defenders Association of New York and the New York State Association of Criminal Defense Lawyers, engaged in a virtual Defender Lobby Day on Feb. 9, 2021. Forty defenders and supporters stressed to legislators and staffers the importance of budget appropriations for NYSDA, the Indigent Parolee Representation Program (IPP) and Aid to Defense (ATD), and the NYS Office of Indigent Legal Services (ILS). The groups also advocated for the Marijuana Regulation and Taxation Act (MRTA) and assigned counsel (18-B) attorney fee increases. Support memos were presented about NYSDA, IPP, ATD, ILS, MRTA, opposition to non-emergency Virtual/Remote Court Proceedings, and an 18-B attorney rate increase.
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