Frustrating End-of-Year Vetoes; Some Bills Signed
The end of 2021 brought two frustrating vetoes by Gov. Hochul. One ended yet another attempt to have public defense providers deemed “qualified agencies” for purposes of, among other important practice (or case preparation) needs, securing clients’ criminal histories. Passage of the bill was announced in News Picks on June 21, 2021. Efforts to educate the Executive about the need for this bill continued thereafter. The veto message acknowledged the “laudable” goal of providing defense counsel “access to information that they are entitled to under the law” but expressed concern about security risks. The Governor said she has “directed the Division of Criminal Justice Services to issue a memorandum to the Office of Court Administration to be shared in courts throughout the state, clarifying that, like a fingerprint based criminal history report, the defendant and their counsel is authorized to receive a name-based criminal history report and retain it in their files.” She also said she intends to continue discussions about ensuring that accused people get all the information they are entitled to and to “find other ways to improve the efficiency and fairness of the criminal justice system in New York State.” NYSDA will be working to hold the Governor to that promise. Defenders are encouraged to contact the Backup Center about issues with accessing criminal history reports.
 
Another frustrating veto killed the Preserving Family Bonds Act, which NYSDA strongly pushed to have enacted. That and other family law legislation are discussed further below.
 
Bills that the Governor did sign into law include:
 
  • L 2021, ch 813: “Relates to juvenile delinquency charges of violations in family court; provides that where an order of fact-finding has been issued that includes a violation committed by a juvenile sixteen years … [or] seventeen years of age, the records shall be sealed automatically without the necessity of a motion; makes related provisions.”
  • L 2021, ch 809: The approval memo indicates that technical amendments will be made to ensure proper implementation of this bill, which addresses gaps in the Raise the Age law of 2017, creating statutory authority to remove “adolescent offender cases that are reduced, by plea, to misdemeanors from criminal court to family court.”
  • L 2021, ch 806: Amends CPL 340.40 “to eliminate the provision of law denying individuals charged with B misdemeanors in New York City Criminal Court the right to a jury trial.”
  • L 2021, ch 784: “Makes the falsification of COVID-19 vaccination records a crime as part of computer tampering in the third degree which is a class E felony.”
  • L 2021, ch 767: “Relates to providing for electronic notarization; authorizes the use of video and audio conference technology in identifying individuals for electronic notarization.”
 
NY Will No Longer Prosecute Children Under the Age of 12
On December 29th, Governor Hochul signed a bill amending the Family Court Act, Social Services Law, and Executive Law to raise the age of juvenile delinquency from seven to twelve years old. Homicide and manslaughter charges are the primary exceptions. For children under twelve who would have faced juvenile delinquency charges previously, differential response programs relying on mental health services will be used in lieu of the juvenile justice system. The act (L 2021, ch 810) takes effect on Dec. 29, 2022. Articles on the new law appeared in the Gothamist and the New York Law Journal.
 
Family Law Legislative Updates
 
Preserving Family Bonds Act Vetoed
With one swipe of the Governor’s pen, New Year’s Eve saw the second veto of the Preserving Family Bonds Act in 3 years. This comes as a grave disappointment to all who strongly advocated for the Governor to sign this bill. The bill would have allowed for post-termination of parental rights contact between biological families and children, when the judge determined it to be in the best interest of those children. In her veto message, the Governor stated her concern that allowing the court to substitute its judgement for that of the adoptive parent, on the issue of visitation, could make it more difficult to find foster adoptive parents for children, and thus achieve permanency. However, family court judges are tasked with making best interest determinations, over the objection of biological parents, on a regular basis, i.e., Article 10 cases, custody and visitation disputes between parents and between parents and grandparents. It was disappointing that the memo did not acknowledge the positive effect this law could have on adopted children who would like to have contact with their biological families, as well as children that are languishing in group homes, with no prospect of being adopted. It remains unclear what version of this bill the Governor would consider signing, but advocates have vowed to regroup to discuss the path forward for 2022 and beyond.
 
State Central Register Reforms Take Effect
A positive piece of news, for those who find themselves the subject of an investigation initiated by CPS/ACS, is that the amendments to sections of the Social Services Law regarding the State Central Register (SCR) finally went into effect on Jan. 1, 2022. The law (Part R of S. 7506-B/A. 9506-B), previously reported in the April 8, 2020 edition of News Picks, passed as part of the 2020 state budget. It raises the standard of proof before someone can be placed on the SCR. For an “indicated” case of child maltreatment, the requirement is elevated from the bare minimum standard of “some credible evidence” to a “fair preponderance of the evidence.” See Office of Children and Family Services (OCFS) Administrative Directive 21-OCFS-ADM-33 (Changes to Administrative Appeals Challenging Indicated Reports of Child Abuse and Maltreatment). Other highlights include the staying of any request to amend an “indicated” report, whether it be for maltreatment or abuse, during the pendency of a Family Court Act article 10 case arising from the same allegations. Also of significance to clients is the effective sealing of “indicated” reports of child maltreatment after 8 years from the date the “indication” occurred. See OCFS Administrative Directive 21-OCFS-ADM-34 (Designation of Certain Indicated Reports of Child Maltreatment as “Not Relevant and Reasonably Related” by Operation of Law). This amendment does not affect those who have been found by the court to have committed abuse. The effect this will have on those who received an indicated case prior to Jan. 1, 2022, remains unclear.
 
Information on other recently enacted Family Court bills can be found in the Family Law, Domestic Violence And Juvenile Justice: 2021, authored by Janet Fink, Deputy Counsel, NYS Unified Court System.
 
Manhattan Judge Grants Writ Based on Conditions at Rikers
On December 22nd, Manhattan Judge April Newbauer granted a client’s writ for release from Rikers Island based on deliberate indifference by the Department of Correction. The ruling relies on the due process clause, as well as the ongoing Nunez monitor and specific instances of violence client encountered while incarcerated. People ex rel Burse v Schiraldi, 2021 NY Slip Op 21351.
 
Conditions at Rikers continue to deteriorate and approximately 200 people detained there are currently on a hunger strike, as reported by the Gothamist. There are reports that individuals are being denied “access to mail and packages, recreation, mental and medical services, and the law library ….”
 
DOCCS Faulty Drug Tests
A new report by the Office of the Inspector General (IG) looking into the Department of Corrections and Community Supervision (DOCCS) drug testing program found that in an eight month stretch of 2019, 1,600 incarcerated individuals were penalized due to faulty drug test results. Instead of following manufacturer instructions and performing a second, confirmatory test using a different method, the IG found that DOCCS employees simply did a second round of the first test. As a result of DOCCS’ improper testing program, clients erroneously had their family visits denied, were put into solitary confinement, and had parole hearings delayed.
 
In December of 2021, DOCCS issued an updated Directive 4938 (Contraband Drug Testing). Several changes have been made to the Directive. For example, the Directive now states that a “certified laboratory report of a positive result of a confirmatory test by the Department’s independent forensic laboratory or the New York State Police laboratory of the suspected contraband drugs may be used to initiate a disciplinary proceeding against an incarcerated individual … and/or used as evidence in a criminal prosecution. …. This certified laboratory report is the only basis to initiate discipline against an incarcerated individual related to the controlled substance or marijuana, and the report shall also be admissible evidence during the ensuring disciplinary hearing.”
 
Manhattan DA Will Not Prosecute Certain Cases, Will Ask for Less Prison Time
New Manhattan District Attorney Alvin Bragg detailed a number of new policies in a day one letter to his staff, including that a number of misdemeanor offenses will no longer be charged unless they come with an accompanying felony charge. The memo also details new policies on pretrial incarceration, which starts with “a presumption of pre-trial non-incarceration for every case” with some exceptions, and sentencing (“The Office will not seek a carceral sentence other than for [certain specified offenses].”) Bragg also announced his executive staff, including several former public defenders in key positions.
 
Senator Bailey Calls for Passage of Assigned Counsel Fee Increase
In an op-ed in the Daily News, State Senator Jamaal Bailey impassionedly details the need to pass his bill to raise fees for assigned counsel, citing CJA increases for the federal bar as well as the October 2021 ILS report on caseloads in the Hurrell-Harring counties. “By failing to raise the statutory rate of compensation for assigned counsel in our state,” Senator Bailey writes, “we have effectively signaled to everyone that the indigent are not entitled to adequate representation.” The December 10th edition of News Picks included an update on the status of the assigned counsel compensation suit filed against New York State and New York City. NYSDA supports the call for passage of legislation to increase assigned counsel fees and a provision for adjusting the rates automatically.
 
Year’s First Two Weeks Rife with Talk About Bail Reform and Pushback
The first weeks of 2022 saw quite a few opinion pieces and articles about bail reform consequences. An Albany Times Union editorial noted that 97 out of 100 people released under the law were not rearrested for a violent crime. “The data appear to affirm that bail reform is, for the vast majority of defendants, doing what it was supposed to do ….” This was followed by “buts.” One, that for people who experienced crime at the hands of people released while their cases were pending, statistics “don’t matter much.” Two, it appears some “judges inexplicably keep releasing people even when they’re rearrested multiple times.” The editors called for a case-by-case analysis to determine whether judges need more training or the law needs tweaking. The editorial ended by stating unequivocally that what existed before reform “was not a fair and just system.”
 
Other pieces called for rollbacks or significant changes to the key principles underlying New York’s bail law. Two articles noted the dueling views on bail reform, one from City & State New York and one from Politico. Discussions include the data made available by the Office of Court Administration and NYS Division of Criminal Justice Services, which is posted at https://ww2.nycourts.gov/pretrial-release-data-33136. In response to reporting by the Times Union regarding the data, Lee Rowland, Policy Director at the New York Civil Liberties Union, wrote in a letter to the editor that “the numbers themselves reveal a bail reform success story” and that “[t]he new data is the strongest evidence yet that bail reform did not cause an increase in violent crime and that assertions to the contrary are groundless fearmongering.”
 
NYSDA opposes both rollbacks of bail reform and efforts to go beyond rollback to legalizing judicial consideration of dangerousness. We will continue to work on this issue and encourage defenders to reach out to us (info@nysda.org or 518-465-3524) if you are interested in getting more involved in this issue.
 
WNY RIAC January 2022 Newsletter
In its first newsletter of the new year, the Western New York Regional Immigration Assistance Center (WNY RIAC) features an article entitled, “Steering Clear of Immigration Consequences: Advisals At The Intersection Of VTL And Immigration Law.” Written by Brian Whitney, Staff Attorney, WNYRIAC, Legal Aid Bureau of Buffalo, the article opens with: “Many vehicle and traffic law convictions have no direct immigration consequences. However, noncitizen clients can be deported or denied citizenship, relief from removal, immigration benefits, and reentry into the U.S. for breaking some rules of the road. Proceed with caution.” The article goes on to discuss what vehicle and traffic violations may lead to immigration consequences and closes with the reminder, “VTL offenses may be perceived to be minor relative to those in other areas of criminal defense, but their impact on noncitizen clients can be profound. Whenever you represent a client born out-side the U.S., regardless of the charge, contact your Padilla advisors at the RIAC.”
 
Pennsylvania Supreme Court: Right to Privacy Extends to Child Welfare Matters
The Pennsylvania Supreme Court has held that the Philadelphia Department of Human Services (DHS), the New York equivalent of the Department of Social Services, failed to establish sufficient probable cause for the trial court to authorize them to enter and inspect the home of a mother based on an alleged neglect report from an unidentified source. The parties “agree that an order permitting a home visit must be supported by probable cause, [but] they do not agree on what constitutes probable cause in a civil proceeding initiated by the filing of a [neglect] report.” DHS unsuccessfully argued that “unlike an entry into a home to search for evidence of a crime, a child protective home assessment is nothing more than a ‘minimally invasive spot-check’ for evidence …[citations omitted].” The Supreme Court was not persuaded by this argument and instead ruled that the mother was entitled to the same protections as if she were the subject of a criminal investigation.
 
In its decision, the majority recognized the sanctity of the right to be left alone, without unreasonable government intrusion. “[M]other sought nothing from DHS other than her basic right to be left alone. The government cannot condition a parent’s right to raise her children on periodic home inspection unsupported by probable cause.” The Imprint Youth & Family News published an item about this case.
 
The decision and the amicus briefs submitted in support of the mother offer a roadmap and some excellent advocacy arguments should you find yourself litigating this issue in court. They are available on the Community Legal Services of Philadelphia website at https://clsphila.org/family/supreme-court-home-search-decision/. NYSDA strongly encourages defenders to familiarize themselves with New York’s much less progressive law on this issue, including Family Court Act 1034 and Social Services Law 424.
 
Keeping an Eye on Hi-Tech Tools
On Dec. 29, 2021, a writer for The Guardian asked readers of the newsletter TechScape how they “feel about tech companies working with law enforcement to equip them with predictive policing or other surveillance technology.” The article began by describing a now-discontinued 2011 police operation intended to predict “where future crimes might be committed and who might commit them.” The Los Angeles Police Department (LAPD) had to end the program, “conceding that the data did not paint a complete picture.”
 
But that didn’t end the LAPD’s interest in high-tech policing measures. In early 2020, the Brennan Center for Justice sought public records on police-department monitoring of social media in several East Coast cities and LA. In November of 2021, the Center released documents from LA “shedding light on the services being marketed by social media monitoring firm Voyager Labs to law enforcement.” TheGuardian.com said the documents revealed that in 2019 the LAPD “trialed” Voyager Lab software. Experts who were consulted said the revelations “raise concerns about the LAPD’s pursuit of ethically questionable software.” The Brennan Center blogged on December 15th that the LAPD had also “piloted social media monitoring software that vacuumed up millions of tweets in October and November 2020 from users throughout the United States ….”
 
From the blog, it appears that Brennan Center efforts to get records from New York City are not progressing quickly. An August 4th update indicates that some documents were obtained in July, and additional ones were anticipated “in the coming weeks.” Meanwhile, back on Sept. 21, 2021, TheIntercept.com posted an extensive article about ShadowDragon, another example of social media surveillance software being used by police. Curbing such “hyper-surveillance” tactics is, as noted in the previous edition of News Picks, among issues that New York public defenders want state lawmakers to address this year.
 
On a separate technology issue, the Criminal Justice Testing and Evaluation Consortium of the National Institute of Justice (NIJ) has published a technology brief on “Chatbots in the Criminal Justice System.” These “computer programs designed to simulate conversation with human users” have been deployed in criminal justice for, among other things, police recruitment and investigations. For example, in New York, LA, and other places, “law enforcement agencies have used chatbots in ‘stings’ in which the chatbots pose as minors offering commercial sex services as a campaign to identify buyers and combat sex trafficking.” [Footnote omitted.] The NIJ technology brief acknowledges many problems and provides questions to ask before entering into chatbox design and implementation. One example of a chatbox failure was Microsoft’s Tay, designed to interact with people on Twitter. It came to parrot “a slew of racist, sexist, and other hateful attacks from human Twitter users.” [Footnote omitted.]
 
How racism infects technologies is a key consideration in evaluating criminal justice applications of high-tech products. One recent discussion is found in “Racial Recognition,” Cardozo Law Review, Vol. 43, No. 1 (2021). In another area, NYSDA has repeatedly flagged the dangers of racial bias in risk assessment algorithms. See, e.g., the Oct. 12, 2021 edition of News Picks. It is difficult to convey the problems. One source of possibly helpful information for communicating with the public (and policymakers) on these issues was published last August by the FrameWorks Institute. “Communicating About the Social Implications of AI: A FrameWorks Strategic Brief” posits several obstacles in public discussions about artificial intelligence (AI). One is that “[p]eople don’t understand what predictive algorithms are or how they work.” The report contains a list of concise descriptions of such algorithms, problems associated with them, and what needs to happen to ensure they are “used responsibly.”



Association News


Last 2021 Issue of the Backup Center REPORT is Online
The September-December 2021 issue of NYSDA’s newsletter, the Public Defense Backup Center REPORT, is available on the NYSDA website. The print issue includes our October 2021 edition of the Lesser Included Offenses chart. The chart is available here. NYSDA members will receive a hard copy of the issue when printing and mailing are completed. If you have any questions, please contact the Backup Center at info@nysda.org or 518-465-3524.
 
Training Save the Dates
This year’s Crimes and Immigration Seminar, co-sponsored by the Immigrant Defense Project (IDP), the National Immigration Project, and NYSDA, will be held virtually on February 14th and 15th. More information will be posted on the IDP website and on our Statewide Training Calendar when it becomes available.
 
The 36th Annual Metropolitan Trainer, traditionally held at NYU, will be held virtually again this year due to COVID restrictions and safety considerations. The scheduled date for the full day program is Friday, Mar. 11, 2022. Details and registration information will be coming soon.
 
NYSDA Membership Renewal
We are grateful to you for your membership and support. You can renew your membership on our website, by phone (518-465-3524), or by mail (194 Washington Avenue, Suite 500, Albany, NY 12210). An electronic invoice is available by logging in to your account on our website, and we will email invoices upon request (email info@nysda.org or call 518-465-3524 and select option 5). For members who prefer to receive an invoice by mail, please note that we will be mailing them very soon. Thank you for helping us fulfill our mission to improve the quality and scope of public defense representation in New York!