Driver’s License Suspension Reform Act Becomes Law
On Dec. 31, 2020, Governor Cuomo signed the Driver’s License Suspension Reform Act (DLSRA), which, even with an agreement to pass a chapter amendment (discussed below), is a key step in curtailing punishment of poverty and systemic racism. L 2020, ch 382. Passed in July with support from many groups including NYSDA, the bill was not delivered to the Governor for his signature until Dec. 19, 2020. In the interim, the Driven by Justice Coalition urged that the bill become law; NYSDA was among those advocating for it in the Coalition’s November 20th letter. We are awaiting language from the final version of the law as Governor Cuomo stated in Approval Memo No. 71 that he had “reached a chapter amendment agreement with the Legislature to remove this provision, and allow the remaining provisions to take effect.”
 
The Fines and Fees Justice Center issued a statement along with its supporters applauding the passage of the law. The Appeal also wrote an article about the DLSRA, “New York Ends a Punishment That Traps People in Poverty.” Passage of the law was referenced in a Daily News opinion piece on Jan. 11, 2021, by Kate Adamides, New York State Director of the Fines and Fees Justice Center.
 
NYSDA will continue to provide information about implementation of the law once the final draft becomes available and, as always, defenders may contact the Backup Center for further assistance. NYSDA will be presenting a training on the DLSRA on Thursday, Jan. 28, 2021, from 3:00-4:00 pm. More information appears below under Association News.
 
NYSDA Launches DVSJA Attorney Support Project
NYSDA is pleased to announce the start of our Domestic Violence Survivors Justice Act (DVSJA) Attorney Support Project. NYSDA, with the support of the DVSJA Statewide Task Force and Brooklyn Law School’s Survivor Justice Project, will provide direct support services for attorneys working on DVSJA cases, including PL § 60.12 sentencing cases and CPL § 440.47 resentencing cases. Attorneys seeking advice and assistance on a DVSJA case should contact Stephanie J. Batcheller, NYSDA Senior Staff Attorney, at (518) 465-3524 x41 or sjbatcheller@nysda.org. For more information, please see the Attorney Support Project flyer and visit our DVSJA web resources at https://www.nysda.org/page/DVSJA.
 
COVID-19 in Jails and Prisons: “A System on Fire”
New York continues to see a surge in cases across the state and concern for people who are incarcerated also continues. A January 6th Rockland/Westchester Journal News article, “COVID-19 in New York prisons: ‘Positivity numbers represent a system on fire’,” reported: “Of the 52 New York State prisons, 36 of them are dealing with COVID-19 outbreaks, according to Evan Misshula, data scientist with Correctional Association of New York. Infection rates in at least five state prisons are well over 20%, with one prison — Woodbourne Correctional Facility in the Sullivan County town of Fallsburg — at 48.3%, Misshula said.” The Gothamist reported on “Growing Concerns Over City Jails Handling The Pandemics Second Wave” last week. Also noted in the Times Union was a report of new positive cases of COVID-19 amongst correctional officers in Albany County Jail.
 
Public Health Experts Make a Case for Decarceration and Legislative Action
On Jan. 4, 2021, four public health experts co-authored a City Limits opinion piece entitled, “It’s Time for NYS to Act on Decarceration in Prisons to Curb COVID-19.” The authors emphasize that “[c]ontainment of this pandemic depends on what happens to the most vulnerable; pandemics reveal whether we really care about all human beings.” Regarding action that New York State can take to address COVID-19 in prisons: “Two bills before the state legislature would accomplish, in part, meaningful decarceration as a public health intervention. Elder Parole, sponsored by Assembly Member Carmen De La Rosa and Senator Brad Hoylman, would allow people aged 55 and older who have served at least 15 years to appear before the parole board for consideration of release, no matter the original sentence or crime. Fair and Timely Parole, sponsored by Senator Gustavo Rivera and Assembly Member David Weprin, would instruct the Board of Parole to base release decisions on an applicant’s current character, behavior, and public safety risk level, rather than on the original offense committed many decades ago.” The Elder Parole bill is S.2144/A.9040 and the Fair and Timely Parole bill is S.497/A.4346.
 
Mixed Messages on Vaccinations for People in State Prisons
Questions continue about “When Will New York Vaccinate People in Prisons and Jails?” Journalist Zack Fink reported on Twitter on January 5th: “During briefing with State lawmakers on distributing the new Covid vaccines by @HealthNYGov, Dr. Howard Zucker and Larry Schwarz tell legislators that inmates in state prisons are in the next tranche of vaccinations, listed as 1B, along with Corrections Officers.” However, soon after that tweet, there were reports that some officials were told that incarcerated people were not included in Phase 1B. The Center for Community Alternatives released a statement soon after in a tweet, “With today’s mixed messages, thousands of families are left wondering when their incarcerated loved ones will have access to COVID vaccines.” As of today, the list of groups eligible for vaccination under Phase 1B does not include individuals in state and local jails. It does include law enforcement agency and corrections staff and court officers.
 
Unsubstantiated Neglect Allegations Rejected by the Court
The Appellate Division, Third Department, in the Matter of Messiah RR., affirmed a Sullivan County family court’s dismissal of neglect and derivative neglect petitions against the mother, and ordered the subject child returned. This ruling was based on the county’s failure to meet its burden, “by a preponderance of the evidence that [respondent’s] failure to exercise a minimum degree of care in providing proper supervision … resulted in the child’s physical, mental, or emotional condition being impaired or placed in imminent danger of become impaired.” [Internal quote marks omitted.] In its decision the court reminded us that, “‘[a] finding of neglect is premised upon a finding of serious or imminent harm to the child, not just on what might be deemed undesirable parental behavior’ ….” Matter of Messiah RR., 2021 NY Slip Op 00066 (3rd Dept 1/7/2021).
 
Allegations in a petition, or made through the state hotline, are not sufficient to establish a neglect, or warrant a removal, without substantiating evidence. In this case the county made numerous allegations against the mother including drug and alcohol abuse and allowing a registered sex offender to live in the residence with the child, but failed to provide any independent evidence of the abuse or that the mother knew she was living with a registered sex offender. The court notes that mother “categorically denied” the allegations made against her in the hotline report. This highlights the importance of advising our clients not to be witnesses against themselves when speaking to CPS.
 
Additionally, the county alleged that the mother was guilty of derivative neglect by failing to address the issues that resulted in the neglect and removal of her other children. But the court rejected that argument because the proof that the county relied on, namely the neglect findings with regard to respondent’s other children, was insufficient by itself, “absent additional evidence of respondent’s continued drug and alcohol abuse or other evidence demonstrating flaws in respondent’s understanding of the duties of parenthood so as to place the child in her care at substantive risk of harm ….”
 
A Step Towards Balancing Justice: Prosecutorial Misconduct Punished
The Second Department, in a lengthy decision issued on Dec. 30, 2020, ordered a former prosecutor suspended from the practice of law for two years based on his violations of the prosecutorial obligations to produce Brady and Rosario materials in a Suffolk County murder and burglary case. The opinion noted, among other things, that “[p]rosecutors have been the subject of disciplinary proceedings in New York courts for at least one century” and that an observation in Berger v United States (295 US 78, 88 [1935]) “that a prosecutor must abstain from acting with impropriety to bring about a wrongful conviction—is trenchant in our time ….” The court stressed that failing to meet the Brady requirement to produce information favorable to the defense may contribute to wrongful convictions and has been determined to constitute conduct prejudicial to the administration of justice, violating the Rule 3.8 of the Rules of Professional Conduct. The charged conduct also violated Rule .8.4, engaging in conduct reflecting adversely on the respondent’s fitness as a lawyer. The respondent had “abdicated his duty as a public officer to ensure that justice shall be done and allowed his advocacy role to eclipse and supplant his role as a public officer,” the court said, adding that it also condemned his actions that purported to delegate prosecutorial ethical obligations to a police detective. Matter of Kurtzrock, 2020 NY Slip Op 08114 (2nd Dept 12/30/2020).
 
The trial at issue in Kurtzrock occurred in 2017, well before passage of the discovery reform statute, CPL article 245. But the Kurtzrock court’s pointed if brief condemnation of the prosecutor’s delegation of his ethical obligations to the police should be considered relevant to, not replaced by, the current discovery law. That law, CPL 245.55(1), notably requires prosecutors to “endeavor to ensure that a flow of information is maintained between the police and other investigative personnel” and the prosecutor’s office, a flow sufficient to place within the prosecutor’s “possession or control all material and information pertinent to the defendant and the offense or offenses charged, including, but not limited to, any evidence or information discoverable under” CPL 245.20(1)(k). The CPL 245.55 provision was cited in the Albany County case discussed in the Dec. 23, 2020 edition of News Picks.
 
A New York Law Journal article on Jan. 4, 2021, noted that the two-year suspension in Kurtzrock was “rare.” The article’s headline begins, “A ‘New Normal’?”, reflecting speculation that severe punishment for intentional, egregious prosecutorial misconduct may become more common. As to preventing wrongful convictions, which was discussed in Kurtzrock, the New York Times published an opinion by the “Exonerated Five” that discusses other means. Proposed legislation, S.6806, would precluded inadmissible statements made by defendants because of false information and require data collection of recorded interrogations.
 
Law Enforcement Efforts Undermine Opening of Disciplinary Records
Police efforts to keep records out of view following the repeal of Civil Rights Law 50-a have included requiring high sums of money to cover alleged costs of finding and disclosing appropriate records. Discussed in a Jan. 8, 2021 news report from North Country Public Radio as well as a Dec. 22, 2020, USA TODAY Network New York/ MuckRock report posted by the Rochester Democrat & Chronicle noted that the police department for the Syracuse suburb of Manlius billed MuckRock $47,504 for a records request, and that some other departments had responded similarly. It also noted that other departments have claimed to have no disciplinary records, while yet others were saying that release of at least some records is a matter of ongoing litigation, with “police unions in New York City, Buffalo, Schenectady and other locations, challenging whether departments can legally release unsubstantiated or pending complaints.” Still other police agencies have claimed that only records created since the repeal of 50-a may be provided, and others have not responded at all. Requests were made to over 400 entities; information about the status of those requests is posted at https://www.muckrock.com/foi/list/?projects=778.
 
The stonewalling has led to press calls for enforcement of the 50-a repeal, such as a Schenectady Daily Gazette editorial on Dec. 25, 2020: “Lawmakers need to investigate why the law is not being followed, and tighten the legislation to ensure that police can no longer hide bad officers and weak disciplinary policies from the citizens the police have pledged to serve and protect.” In short order that editorial was followed by another that lauded the court ruling described below.
 
Suit to Block Release of One Officer’s Record Rejected; Other Releases Blocked
A court has rejected efforts by the Schenectady Police Benevolent Association to block release of information about allegations of police misconduct found to be unfounded or unsubstantiated or that resulted in counseling rather than disciple. The suit, which involved the records of an officer who was seen in a video appearing to kneel on the neck of a man he was arresting, sought to establish privacy exceptions to the broad repeal of 50-a. As noted in the Nov. 4, 2020, edition of News Picks, the New York Civil Liberties Union, which had submitted a Freedom of Information Law (FOIL) request for the records, was permitted to intervene in the case. The Times Union, which had also requested the records, reported the decision to dismiss the suit with prejudice on the day it was issued, December 29th. Links to that article and other information can be found on NYSDA’s Law Enforcement Disciplinary Records webpage. The Court’s opinion in that case is available here.
 
But in Rochester, the end of the year saw a judge issue a temporary restraining order in another police union suit, stopping the planned public release of disciplinary records. According to a Democrat & Chronicle article on December 31st, the union claimed in initial filings that it is only seeking to delay, not prohibit, disclosure, to ensure internal review and redaction of personal information. Public release of personal information like Social Security numbers was cited by the union as the reason more time and review was needed.
 
Prosecutors Resistance to Repeal Meets Mixed Results
One form of prosecutorial resistance to the 50-a repeal has been assertions that defense counsel must seek police records from police entities themselves using a subpoena or FOIL rather than expect or demand that the prosecutor provide them. Some prosecutors have claimed to meet disclosure requirements with no more than a letter stating that substantiated acts of misconduct had occurred. The latter was rejected in a November 4th Bronx Criminal Court decision published by the New York Law Journal on Dec. 4, 2020. In People v Porter, the court noted that the prosecutor’s action was taken in good faith, as other trial courts had allowed it, but found that those other decisions “contravene both the plain mandates of the new discovery rules and the underlying intent of the revisions to ensure openness in criminal trial preparation.” The cases rejected in Porter include People v Gonzalez, 68 Misc 3d 1213[A] (Sup Ct, Kings County 8/19/2020).
 
While defense lawyers should contest any efforts by prosecutors or courts to put the burden on the defense to obtain discoverable material by way of subpoena or FOIL requests, those procedures remain in counsel’s arsenal when needed. For example, if a civilian complaint review board has not provided records to the relevant police department or prosecutor, and are deemed not to be in their control, the defense can seek such records via subpoena or FOIL. Attorneys can find information on NYSDA’s “Resources” webpages, including the Law Enforcement FOIL page and Discovery Reform Implementation page.
 
LAS Summary of RTA Decisions Available
An updated summary of decisions regarding Raise the Age (RTA) issues, prepared by Nancy Ginsburg, Director of the Adolescent Intervention and Diversion Practice of The Legal Aid Society’s Criminal Trial Practice, is available from the Backup Center. Email info@nysda.org to request a copy. In just under two years, the summary has grown from five pages to 38 pages. As the Table of Contents shows, the summary is organized by topics that include Timeliness of Retention Motion, Waiver of Statutory Process, Extraordinary Circumstances, Sole Actor, Juvenile Offenders, and more. NYSDA greatly appreciates the opportunity to share this important resource with defenders in the field.
 
OCA Seeks Comments on Proposal to Authorize Mandatory E-Filing in Criminal Courts
The Director of the OCA Division of E-Filing has released a memo seeking: (1) comments on electronic filing; and (2) comments on a proposed amendment to CPLR article 21A and other statutes to authorize the Chief Judge and the Chief Administrative Judge to make e-filing mandatory in any or all trial courts around the state. According to the memo, their proposal would not eliminate the existing requirement to consult with local bar associations, legal services providers, and other groups before an expansion, unrepresented people would continue to be exempt from e-filing, and attorneys would continue to be able to opt out of e-filing “if they lack the equipment or knowledge to participate.” Comments will be accepted until Jan. 25, 2021 and should be sent to: Jeffrey Carucci, Dir., Statewide Coordinator for Electronic Filing, Office of Court Administration, 25 Beaver Street, New York, NY 10004 or efilingcomments@nycourts.gov. If you submit comments on e-filing, we’d greatly appreciate it if you would send a copy to NYSDA at info@nysda.org. 
 
 
Association News
 
Renew Your NYSDA Membership Today!
Please support NYSDA’s work to improve the quality and scope of public defense during this critical time by renewing your membership for 2021. We will be mailing out renewal notices in the coming week. If you’d prefer to renew online, you can do so simply and securely on our website. To log in, go to our Sign In page. Your username is your email address. The first time you log in, you will need to use the Forgot Your Password? option to set a password that you can remember. If you have any questions about your membership or our Association, please feel free to contact Executive Director Susan C. Bryant at (518) 465-3524 or sbryant@nysda.org.
 
Upcoming NYSDA Training Programs
 
NYSDA will be presenting several training programs in the coming weeks on new and developing issues. More information and registration links will be available shortly. For questions about NYSDA training programs, please email training@nysda.org. We hope you can join us for one or more of these important CLE programs.
 
Friday, January 22, 2021, 1:00 - 3:00 pm: Assessing and Challenging Certificates of Compliance Under CPL 245 with Ruth Hamilton, Senior Attorney, Legal Department, The Bronx Defenders and Defne Ozgediz, Senior Attorney, Legal Department, The Bronx Defenders
 
Wednesday, January 27, 2021, 1:00 - 3:00 pm: Bail Practice Refresher with John Bradley, Special Assistant Public Defender, Monroe County Public Defender’s Office
 
Thursday, January 28, 2021, 3:00 - 4:00 pm: Introducing the New Driver’s License Suspension Reform Act [DLSRA] with Scott Levy, Chief Policy Counsel, The Bronx Defenders and Ranit Patel, Equal Justice Fellow, Criminal Defense Practice, The Bronx Defenders
 
Tuesday, February 2, 2021, 1:00 - 2:45 pm: Tips & Tactics on Grand Jury Practice with Jill Paperno, First Assistant Public Defender, Monroe County Public Defender’s Office