Good CPL Article 245 Decision Out of Rockland Country
In the December 23rd edition of News Picks, we discussed Matter of Jayson C. (200 AD3d 447), where the First Department unanimously reversed the Bronx Family Court for denying equal protection of the laws to a respondent in a juvenile delinquency proceeding by not providing them with the same CPL discovery rights provided to an adult in criminal court. In that case, the respondent sought disclosure under CPL 245.20(1)(k)(iv), but only received letters that summarized the disciplinary history of the 12 officers involved in the arrest and investigation. The First Department held that CPL 245.20(1)(k)(iv) “broadly requires disclosure of all impeachment evidence ….”
 
A December decision out of Rockland County Court, People v Polanco-Chavarria (2021 NY Slip Op 51297[U]), adopts the Jayson C. interpretation of the current discovery law. The court found that the prosecution “must disclose all the underlying disciplinary records of all substantiated and unsubstantiated allegations of police misconduct for all testifying prosecution witnesses in order to be in compliance with CPL § 245.10(1)(k)(iv).” Specifically, that disclosure “must be complete before the filing of a certificate of compliance absent a protective order (see CPL § 245.50[1])” and even if the records are not in the possession of the prosecution, “CPL § 245.55(1) requires the district attorney or the assigned assistant to endeavor to ensure a flow, from the police to the People, of all evidence or information discoverable under CPL § 245.20(1)(k) ‘sufficient to place [it] within his or her possession or control.’”
 
Appellate Division Rejects Claim of Equitable Estoppel in Paternity Case
In Matter of John D. v Carrie C., the Third Department affirmed the decision of the Fulton County Family Court that rejected the mother’s claim of equitable estoppel, and granted the petitioner’s request for a genetic marker test (GMT) to determine if he was in fact the father of the seven year old. At the time of the birth of the child, the mother was unclear as to which of two people was the father of her child. One of the men (the respondent) signed the acknowledgment of paternity and was listed on the birth certificate. It eventually came to light that the respondent was not the father, and the child was made aware of that, although the respondent did maintain a relationship with the child. The court determined that equitable estoppel was not a bar to granting the petitioner a GMT, instead finding that the mother failed to meet her burden of proving that equitable estoppel applies. “‘[T]he record fails to establish that the child would suffer irreparable loss of status, destruction of [her] family image, or other harm to [her] physical or emotional well-being if this proceeding were permitted to go forward’ ….” Family court defenders are encouraged to familiarize themselves with the governing statute regarding GMT testing in paternity cases, Family Court Act 532.
         
DiFiore Outlines Judiciary Modernization Plan
In her February 16th State of Our Judiciary speech, Chief Judge DiFiore outlined a modernization plan to consolidate the state’s eleven trial courts to two. DiFiore called New York State “without question, the most inefficient, outdated, fragmented and needlessly complex trial court structure in the nation,” with that obsolete structure creating “undeniable disparities: disparities in the provision of justice services, disparities in the quality of those justice services, and disparities that have exacerbated by the fallout of the ongoing pandemic.”
 
According to the proposal to amend the New York State Constitution, the Court of Claims and the county, family, and surrogate’s courts would be merged into a single statewide Supreme Court. A new Municipal Court would be created to encompass New York City’s civil and criminal courts, Long Island’s district courts and the 61 upstate city courts. Town and village courts are not addressed by the proposal.
 
“An Absolutely Unacceptable State of Affairs” in Family Court
DiFiore’s presentation honed in on the abhorrent situation in the family courts. DiFiore stated that “[h]istory and experience have proven the point beyond any reasonable doubt: the worst consequences of our antiquated trial court structure fall on the backs of vulnerable families pursuing related legal issues. It is common for litigants with divorce, child custody, child support and domestic violence issues to have to appear before different judges in multiple courts, which leads to more lost workdays, more childcare and transportation expenses, more stress and frustration and, certainly, less trust and confidence in our courts and the justice system.” DiFiore hopes the consolidation will help to alleviate these problems.
 
DiFiore highlighted how the shortage of assigned counsel, due to the low assigned counsel rates, is causing a crisis in the family courts. As noted in the February 18th edition of News Picks, DiFiore pointed to a few dedicated and overworked attorneys who are forced to carry the excessive caseload in both parental and attorney for the child representation. “At the risk of stating the obvious: when all parties are adequately represented, judges are better able to make timely, well-informed interventions and issue decisions that serve the best interests of children and families in crisis. This is especially true in child welfare cases, where the effective assistance of counsel protects the constitutional rights of parents separated from their children, advances the best interests of children in need of safety and permanency, fosters and speeds family reunification and enables judges to order essential services for all family members ….”
 
Additional reporting on the State of Our Judiciary can be found in the Imprint Youth and Family News and the New York Times.
 
Need for Timely Entry of Counsel for Appearance Ticket Cases Noted
People given appearance tickets may avoid jail but still experience injustice. So says an item from New York Focus. As expected, New York City police data indicate that the number of appearance tickets has increased since bail reform went into effect. In general, the law requires that arraignments on appearance tickets occur as soon as possible, but no later than twenty days from the date of issuance. Since counsel is not provided until arraignment, evidence like surveillance videos may be destroyed before defense investigators have a chance to look for it. Even ultimately good results such as outright dismissals and adjournments in contemplation of dismissal may come only after people lose jobs due to pending charges. Defenders have requested that the court system share with them the contact information for people who have been issued appearance tickets. This was done during the pandemic, when Executive Orders delayed arraignments beyond the twenty-day limit. However, court administrators now say that giving defenders immediate access to contact information for those with new charges is not feasible in the “brief” twenty days.
 
“Competence to Stand Trial Assessment: Practice-Based Views on the Role of Neuroscience”
A recent law review article discusses the convoluted intertwining of scientific and legal principles in competency determinations. The authors assert that “most competence-related questions are addressed without profound inquiry, and without attention to best professional practices …” [footnote omitted here and throughout]. The article cites sources for guidance including the fourth set of the American Bar Association Criminal Justice Standards on Mental Health and specialized training. The article says that in some instances—when there are conflicting expert opinions about competency and in “the more difficult or complicated cases”—multidisciplinary involvement might mean a lawyer would “seek to consult with a neuropsychiatrist who has extensive experience in competence assessment, a behavioral neurologist, or an expert on neuroimaging and the aging brain.” But multidisciplinary approaches can create issues as to whether the lawyers and judges involved are able “to appreciate and understand the strengths and weaknesses of particular competence assessment paradigms.” The penultimate section of the article, which follows a discussion of four cases in which neuroscience and neuroimaging have been invoked in competency determinations, is summed up in its heading: “Lawyering and Forensic Mental Health Standards of Practice Will Call for Practitioners to Consider Neuroscience and its Tools in Competence Assessments.” The authors’ hoped-for takeaway is that “the increased proliferation of literature and training opportunities will serve to increase the quality and reliability of competence assessment going forward.”
 
Access to Mental Health Services: News and Needs
As posted by the New York Association of Psychiatric Rehabilitation Services, the Legislature has tweaked laws passed last year, “changing mental health practitioners to mental health counselors and adding marriage and family therapists to the list of providers covered by Medicaid.” One response to criticism about the cost of the additions, as noted by the cited Post-Standard article, is that “‘roughly 50% of the counties in New York state do not have one single mental health provider who accepts Medicaid.’”
 
NYSDA seeks to help defenders and others dealing with mental health issues. Services include case-specific assistance, such as aiding with searches for experts (see for example our website resources); CLE training; and legislative analysis of bills and laws with explicit or implicit intersections between mental health and criminal—or family—law. See Executive Director Susan C. Bryant’s budget testimony, which notes that mental health systems are among those that are entwined with public defense. NYSDA’s budget request seeks funding for a new statewide Defender Discovery and Forensic Support Unit that would, among other things, seek to expand client access to mental health treatment by helping connect defenders with existing and new services.
 
Shotspotter News: Upheld in MA, Expanding in NYC
A Massachusetts appellate court reversed a trial court’s suppression of a gun found on a man seized after he was found in an area where ShotSpotter sensors had issued alerts that possible gunfire had been detected. The February 22nd decision in Commonwealth v Ford said that while an initial alert did little more than point to the right direction for investigating a possible shot fired, the timing and location of subsequent alerts, combined with a responding officer’s own hearing of what he thought to be gunshots, made it increasingly reasonable to infer that the sensors were being activated by gunfire. It was also reasonable to infer that the person responsible would be found at or near the location indicated by the final alert soon after it was sent. A footnote indicates that “the defendant did not request a hearing to test the scientific reliability of ShotSpotter” or “squarely raise the scientific reliability of the ShotSpotter system ….”
 
An op-ed in the New York Daily News late last year reacted negatively to an announcement that New York City’s police department was expanding the use of ShotSpotter. News Picks has reported on ShotSpotter before, including in the Aug. 10, 2021, edition. Additional resources about ShotSpotter are available from the Backup Center.
 
Fighting Crime and Angering Police
In a New York Times guest essay, Emily Bazelon cogently presents strong arguments against overreliance on police and prosecution to prevent crime. “Accumulating research in well-designed studies supports the idea, counterintuitive though it may seem, that prosecuting fewer people can actually reduce crime,” she writes. Bazelon’s piece was highlighted in the February 9th edition of “Wednesday Watch on Injustice” from It Could Happen to You (ICHTY). ICHTY was instrumental in the passage of the legislation to create the state’s Prosecutorial Conduct Commission, funding for which has been proposed in this year’s Executive Budget.
 
Student Loan Repayment and Forgiveness Updates
Thank you to the Education Debt Consumer Assistance Program for this update on student loans, the Public Service Loan Forgiveness Program, and related topics.
 
Student Loan Payment Resumption
Federal student loan payments are expected to resume May 1, 2022. Log into your servicer account and look for recent notices. You should receive your first invoice with the amount and due date at least 21 days in advance. For updated and reliable information about the payment pause, visit studentaid.gov.
 
Public Service Loan Forgiveness (PSLF)
If you are pursuing PSLF, here are a few things to know:
  • FedLoan servicing is still managing the PSLF program. This means that your loans must be with FedLoan if you want to know how many qualifying payments you have for the program, or if you want to know whether you qualify for forgiveness now.
  • MOHELA will take over the PSLF program and the Teacher Education Assistance for College and Higher Education Grant program later in the year as FedLoan is exiting the federal student loan servicing business. You can read more here. You will get advance notice if your loans are being transferred.
  • If you have sent PSLF related forms to FedLoan, know that there are processing delays.
  • As a reminder, you have until October 31, 2022 to benefit from the PSLF Temporary Waiver rules. If you still have FFEL, Perkins, or other (non-direct) federal student loans, you’ll need to consolidate your loans into a Direct Consolidation Loan to qualify for the waiver and the original PSLF program. Here’s a video on the consolidation process.
  • Borrowers are receiving confusing notices about whether their loans have been reviewed under the Waiver. But they are also reporting forgiveness under these Temporary rules! When in doubt, feel free to reach out to EDCAP for help.
 
Navient Settlement
Navient recently settled a lawsuit by 39 States, including New York for a total of $1.85 billion. We have received a number of inquiries from borrowers who currently have or have had loans in the past with Navient about whether they qualify for relief. The settlement will cancel debt for some private loan holders and return about $260 each to 350,000 federal borrowers. For more information, see the FAQs from the NYS Office of the Attorney General.
 
Borrower Defense to Repayment (BDR) Claims
The U.S. Department of Education recently approved over $400 million to settle BDR claims of fraud and misrepresentation, primarily against four schools: DeVry University, Westwood College, ITT Technical Institute and Minnesota School of Business/Global University. Thousands of borrowers who have filed these claims will see their loans discharged. For more information click here.
 
Beware of Student Loan Scams
Student loan scams are on the rise. If you are promised immediate forgiveness, asked for your FSA ID password, or asked to pay money upfront or monthly fees, it is likely a scam. You can read more here. You should never have to pay for student loan help. Call your servicer or contact EDCAP for free assistance.
 
Need Student Loan Help?
Contact the Education Debt Consumer Assistance (EDCAP) for free and unbiased student loan help: 888-614-5004 or edcap@cssny.org. They offer counseling services and can guide you through the PSLF waiver and application process. 



Association News


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.
 
Friday, March 11, 2022, 9:00 am – 4:30 pm: 36th Annual Metropolitan Trainer. Traditionally held at NYU, the Metropolitan Trainer 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.
 
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: Application of the Interstate Compact on the Placement of Children (ICPC) in Article 10 Cases, with Chris 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.