March 18th is Gideon Day!

NYSDA’s Board of Directors passed a resolution on January 20th recognizing the 60th anniversary of the U.S. Supreme Court’s right-to-counsel decision in Gideon v Wainwright. The resolution notes the importance of the right, NYSDA’s role in the continuing effort to fully implement it, and the need to secure “the attention and support of officials and the public to ensure that public defense services have sufficient funding, necessary infrastructure, and requisite independence …” The Board denoted this coming March 18th, the anniversary of the 1963 decision, “‘Gideon Day,’ to be celebrated by NYSDA through appropriate publications or events highlighting quality, client-centered public defense representation.” NYSDA works every day to improve the quality and scope of public defense representation; please join us in that work!

Winter 2023 DuBrin CPL 30.30 Manual Available

There is a new Winter 2023 Edition of “Criminal Procedure Law Section 30.30(1) Manual“ by Drew R. DuBrin of the Monroe County Public Defender’s Office available on NYSDA’s Criminal Defense Resources webpage. Many thanks for Drew and the Monroe County Public Defender’s Office for this excellent resource.

DVSJA Statewide Task Force Shares New Coercive Control Attorney Guide

The Domestic Violence Survivors Justice Act Statewide Task Force has created a new “Introductory Guide to Coercive Control For The DVSJA Attorney: Coercive Control Is Domestic Violence.” The purpose of this guide is to introduce defense lawyers to the concept of coercive control. Understanding coercive control will enable attorneys to explain to a judge why a client stayed in a relationship with her abuser, and why he or she engaged in criminal conduct in reaction to the abuse, as appeasement or as a consequence of the abuse. The guide is available here, on the NYSDA DVSJA resource webpage. Attorneys seeking assistance or resources may contact NYSDA’s DVSJA Attorney Support Project by contacting Senior Staff Attorney Stephanie Batcheller at SJBatcheller@nysda.org or 518-465-3524 x 41.

1st Dept. Addresses SORA Requirements for Those Without Addresses

The First Department held on February 2nd that “Correction Law § 168-f(3) is void for vagueness when applied to one who is homeless without an address, thereby depriving defendant of due process under the New York and United States Constitutions (see US Const Amends V, XIV; NY Const, art I, § 6).” In People v Allen (2023 NY Slip Op 00496), the appellate court dismissed the charge of failure to verify address information. The Sex Offender Registration Act (SORA) fails to provide any “objective standard or guidelines” that would put people required to report their address “on notice of what conduct is required of them” when they leave an address and possess no new residence with an address. “Individuals dealing with homelessness face numerous obstacles,” the Appellate Division noted, so that they “may occupy many locations, on a more or less regular basis, during the course of a day, week or month,” and “often occupy different locations for sleeping than for spending the rest of the day.” The ruling, the court specifically said, “does not exempt homeless sex offenders who are able to provide an address such as a shelter at which they are staying.” Nor does it bar legislative action providing specific registration requirements for those who lack a specific address to report.

Defenders with clients charged with or convicted of sex offenses are reminded that materials available on NYSDA’s Criminal Defense Resources webpage include Alan Rosenthal’s comprehensive manual, "Defending Against the New Scarlet Letter: A Defense Attorney’s Guide to SORA."

ShotSpotter Data is Automatically Discoverable

A decision from Bronx Supreme Court Justice Tara A. Collins on January 27th contains a lengthy discussion about discovery of data from the gunshot detection company ShotSpotter, which has been used by the New York Police Department (NYPD) since 2015. The published decision in People v Gutierrez (2023 NY Slip Op 23022). describes ShotSpotter technology, and notes, among other things, that it “has been integral to police activity in cases involving a shooting from a firearm,” that much of the data created in a “potential gunfire incident’” is accessible to authorized NYPD personnel, and that “ShotSpotter records are material and germane to determining whether the police intrusion was justified at its inception.” The prosecution’s argument that they lack access to ShotSpotter data was rejected; they failed to demonstrate exercise of due diligence to obtain the information.

ShotSpotter remains controversial and in the news. The Suffolk County District Attorney included the revival of its use in his list of accomplishments during his first year, as reported on January 31st by Newsday. “[W]e start the investigation within . . . seconds of learning that a shot is fired,” the prosecutor stated; county officials have said ShotSpotter “is being rolled out in communities where gun violence is more likely to occur ….” The cost was reported as $1.6 million. Prior News Picks mentions of ShotSpotter include a December 29th item on surveillance and automated decision-making systems.

TechDirt recently featured an article highlighting some shortcomings of ShotSpotter: “ShotSpotter Employees Not Only Have the Power to Alter Gunshot Reports, But Do It Nearly 10% of the Time.” In Newark, New Jersey, from 2010 to 2013 ShotSpotter sensors were activated and alerted police 3,632 times, led to 17 arrests, and “[a]ccording to the investigation, 75% of the gunshot alerts were false alarms.” Similarly, in San Diego, 72 of the 584 alerts the police received were unfounded: “‘a whopping 25 times higher than the 0.5 percent false positive rate put forth by the company.’” Further, while the ShotSpotter human staffers reviewing the audio make judgment calls to help distinguish the source of a loud noise, they may “also alter determinations and gunshot locations to better serve the needs of law enforcement agencies that interact with them.”

Since ShotSpotter documents have been deemed automatically discoverable in one county in New York and these behind-the-scenes human alterations are occurring, defenders in jurisdictions where ShotSpotter is being used should seek disclosure if these items are not automatically disclosed. NYSDA continues to collect information on this technology; attorneys are encouraged to contact the Backup Center about questions or new developments.

NYCLU Sues DOCCS for 50-a Records; Court Orders Troy Police to Disclose Records

“The New York Civil Liberties Union [NYCLU], with pro bono counsel from Simpson Thacher & Bartlett LLP, filed a lawsuit against the New York State Department of Corrections and Community Supervision (‘DOCCS’) for unlawfully denying the NYCLU’s requests for records related to law enforcement misconduct in state prisons,” according to a January 31st press release. The story was reported in a February 1st article in the Auburn Citizen, among others. The New York Law Journal’s article noted that “[a]t the time of the law [Civil Rights Law 50-a] change, lawyers from Harris Beach alerted that municipalities throughout New York should be prepared for an increased amount of FOIL requests.” The NYCLU release notes suits filed against several law enforcement agencies over the withholding of public records since the repeal of 50-a. Past News Picks have also covered such suits, most recently the December 12th edition.

Given that many public defense clients are sentenced to DOCCS, and some charges are lodged against people for alleged actions once inside, the disciplinary records of corrections officers can be important to defenders. NYSDA has conducted training on the interplay between the repeal of 50-a and discovery reform; attorneys seeking those materials should contact the Backup Center. Disciplinary records may also be important to clients considering suits for violation of their civil rights by law enforcement.

Meanwhile, the Rensselaer County Supreme Court has granted NYCLU’s suit against the City of Troy for its partial denial of a FOIL request for law enforcement records and awarded attorneys fees. The court directed the respondent “to review the law enforcement records sought by petitioner and locate all open and unsubstantiated claims of misconduct, by officers with the Troy Police Department, for the time period specified,” identify records or portions that may be redacted or withheld as exempt, and provide those records “‘subject to any redactions or exemptions pursuant to a particularized and specific justification for exempting each record or portion thereof’ Matter of New York Civ Liberties Union v City of Rochester, 210 AD3d [1400,] 1401).” Matter of NYCLU v City of Troy, EF2-21-268862 (2/9/2023).

Child Support Suspension Upheld Based on Parental Alienation

In the Matter of Morgan v Morgan (2023 NY Slip Op 00424 [2/1/2023]), the Second Dept. upheld the decision of the Kings County Family Court judge that granted the father’s motion to suspend his child support obligation based on parental alienation. According to the decision, the father had filed multiple petitions for parental access, which resulted in very limited parenting time. “A suspension of child support payments is ‘warranted only where the custodial parent’s actions rise to the level of deliberate frustration or active interference with the noncustodial parent’s visitation rights [citations omitted].’” “There was … evidence that the mother failed to make efforts to assist the children in developing a relationship with the father, and instead encouraged the children’s negative view of the father in an apparent effort to weaponize the children against him.” It is unusual but not unheard of for a child support obligation to be suspended on these grounds. This case is a good reminder that family defenders need to use every tool available to defend against a contempt petition. Defenders are encouraged to study this decision when representing a client facing similar circumstances. This case highlights the importance of engaging in client-centered representation and providing context for the client’s position. 

Highlights about the Proposed Executive Budget for FY 2024

On February 1st, the Governor released the proposed Executive Budget for the 2023-2024 SFY. The budget presentation and budget legislation are available at https://www.budget.ny.gov/pubs/archive/fy24/ex/index.html. 

Assigned Counsel Rates: The Governor’s budget includes a proposal to increase assigned counsel rates, but inappropriately bifurcates the rates between upstate ($119/hour) and downstate ($158/hour). The proposal also fails to include an automatic cost of living adjustment, eliminates the ability of the court to grant compensation above a set cap, and fails to have the State take financial responsibility for the increase. Part P, Public Protection and General Government Article VII bill (S4005/A3005). This proposal comes at a time when the New York State Bar Association has filed a motion for a preliminary injunction to increase compensation for assigned counsel to $164/hour, matching the federal rate. On February 1st, New York Supreme Court Judge Lisa Headley issued an order to show cause for a preliminary injunction directing New York State to show cause by written submission on March 23, 2023.

Bail Reform Rollback: The Governor’s budget also includes a proposal to remove the “least restrictive” standard, alleged to be “confusing,” and upending the long-standing bar to consideration of an accused person’s dangerousness, giving judges broad discretion. Part B, Public Protection and General Government Article VII bill (S4005/A3005). On January 30th, the Legislature held a Joint Hearing on Criminal Justice Statistics that focused on bail statistics and non-statistically supported beliefs of various stakeholders. NYSDA’s written testimony from the hearing is available here; video of full-day hearing testimony is available here.

Defense Funding: The Executive Budget includes the same level of funding for the sixth year of the statewide expansion of Hurrell-Harring settlement; regular distributions to counties and New York City; and the five Hurrell-Harring settlement counties (Onondaga, Ontario, Schuyler, Suffolk, and Washington). The budget also includes $4.5 million for improved family defense representation, which is $23.5 million less than the Indigent Legal Services Office requested. Unfortunately, the proposed budget does not include funding for the defense for discovery. It does, however, include increased funding for prosecutors, including $40 million for discovery and $47 million for prosecution services.

NYSDA and Defender Budget Advocacy Efforts

NYSDA along with the Chief Defenders Association of New York (CDANY) and the New York State Association of Criminal Defense Lawyers (NYSACDL) have been meeting with legislators to request funding from the legislature in addition to what was included in the Governor’s proposed budget. NYSDA, CDANY, and NYSACDL participated jointly in meetings with key legislature staffers, submitting written memos to encourage restoration of funds from the 2022/2023 fiscal year and to request much needed additional funding. The requested funding includes: state funding for an assigned counsel fee increase to $164/hour in all counties; a cost-of-living increase for ILS aid to localities funds; parity between Aid to Defense and Aid to Prosecution; expanded funding for parental representation; expanded funding for the Indigent Parolee Representation Program; and full and expanded support for NYSDA’s Public Defense Backup Center and Veterans Defense Program.

In further support of the need for increased funding to defenders and defender programs, NYSDA’s Executive Director, Susan Bryant, testified on a panel alongside Brooklyn Defender Services’ Executive Director, Lisa Schreibersdorf, on February 7th at the Joint Legislative Public Hearing on the 2023-2024 Executive Budget Proposal. NYSDA’s written testimony may be found here and full video of the day’s testimony can be found here (link to NYSDA panel 9:36:36).

Hevesi and Brisport Call for Legislation to Support Families

As reported in the Imprint Youth & Family News and the Queens Gazette, Senator Jabari Brisport and Assemblymember Andrew Hevesi, along with children and family advocates, called for a package of legislation to establish “a dedicated funding stream for foster care prevention programs, expand access to child tax credits, improve child care and enhance economic stability for low-income families.” Brisport and Hevesi announced that the package, described as “an ‘economic stimulus’ for New York’s most vulnerable residents,” will be formally introduced in the coming weeks. The funds would bypass government child protective services agencies and instead funnel through community-based programs in areas that are disproportionally affected by the child welfare system, particularly poor Black and brown communities. NYSDA applauds this effort to invest in communities and families that have been targeted and not supported by the family regulatory system for far too long.

MAT in 2023

Among the mental health issues mentioned in January’s State of the State address was medication-assisted treatment (MAT) for incarcerated people with substance use disorders. Governor Hochul said that “[t]he State’s Office of Addiction Services and Supports (OASAS) and Department of Health (DOH) and other agencies will continue to collaborate” on MAT and other initiatives. The National Association of Counties has posted information including a January 23, 2023, strategy brief on opioid use disorder treatment for people who are incarcerated.

MAT was also mentioned in a January Monroe County announcement about fighting the opioid epidemic; the Sheriff said that their MAT Unit provides “stabilization and a seamless transition out of jail” for those who need it, but also noted that “PREVENTION” is key. NYSDA has been told that the program includes assistance with aftercare, such as coordinating bed-to-bed transition into in-patient treatment at the end of incarceration, getting the person set up on Medicaid, and following their progress for two years. The Sheriff’s Office said that MAT is offered in the jail even for individuals not participating in the Drug and Alcohol program and that as of March, a 90-day in-house treatment program, also including MAT and similar to any program currently offered in the community, will be available for about 50 people.

Legislation that became effective Oct. 7, 2021, provided for MAT in New York prisons and jails. Well before that, NYSDA was encouraging defenders to support their clients seeking MAT, as noted in the Sept. 24, 2021, edition of News Picks; see also the Sept.-Dec. 2021 issue of the REPORT. We hope that implementation of the MAT legislation – like efforts detailed in a Yahoo report on North Country counties in June 27 of last year – has been and will continue to be successful; defenders are encouraged to contact the Backup Center with information about MAT in their jail or questions. 

DoNotPay’s Legal Services AI Chatbot Draws Scrutiny

The CEO of DoNotPay, Joshua Browder, planned to have a robot argue in court, but the idea was met with jail threats from state bars. Browder had promised that his AI-powered virtual lawyer service would be able to help users with legal issues, but questions have arisen about the sophistication of the technology and the validity of the promises made by the company. Despite initial hype, the company has received criticism for its questionable capabilities and Browder’s tendency for publicity stunts. In response to the backlash, Browder decided to shut down the more sophisticated legal offerings and focus on the $500 refund area of business.

The paragraph above was written by ChatGPT, a popular AI Chatbot created by OpenAI, in response to this prompt: “Summarize the text of this web page into one paragraph: https://www.npr.org/2023/01/25/1151435033/a-robot-was-scheduled-to-argue-in-court-then-came-the-jail-threats“ AI-powered chatbots are impressive, but there are countless accuracy, confidentiality, and security concerns.

Despite the many problems of using AI for legal work, a quote from DoNotPay’s CEO (which did not make it into ChatGPT’s summary above) should pique the interest of public defense attorneys. “The truth is, most people can’t afford lawyers” and “[t]his could’ve shifted the balance and allowed people to use tools like ChatGPT in the courtroom that maybe could’ve helped them win cases.” Defense attorneys and access to justice advocates will need to remain alert to the impact of AI, particularly as judges and prosecutors begin using the technology.

For more on AI and the practice of law, see Jerome Greco’s article in this month’s Decrypting a Defense Newsletter.

Are All Client-Defender Communications Privileged?

A recent U.S. Supreme Court dismissal of cert can remind defenders to actively protect the confidentiality of client—and potential client—information. Legal commentators took note of the case, In re Grand Jury, which raised questions about the limits of the attorney-client privilege as to communications dealing with both legal advice and other advice (e.g. business advice like tax considerations). The case can also represent a broader issue, which is: there is often someone who wants to know what clients said to their lawyers. For defenders, this includes what clients and potential clients say about their financial eligibility for mandated representation. The Indigent Legal Services Office (ILS) eligibility standards, which require confidentiality of information in applications for representation, note in commentary that “prosecuting attorneys or other entities have sought to obtain, and to use against applicants, financial information gathered during the eligibility screening.” Public defense providers that handle eligibility screening have to protect that information.

On another front, information divulged by prospective and former clients is confidential. The State Bar of Nevada Standing Committee on Ethics and Professional Responsibility noted in its Formal Opinion No. 25 (2001, conclusion amended 2007), citing American Bar Association Formal Opinion 90-358, “information imparted to a prospective client seeking legal representation is protected from revelation by confidentiality even if the attorney does not represent or perform legal services for the prospective client.” Lawyers who conflict out of a case need to protect such client information. Rules of Professional Conduct, Rules 1.6 and 1.9.

Important Updates to Notary Public Requirements

New York has amended the laws governing notaries public. “Beginning January 25th, 2023, all notaries, including those notaries that only provide traditional in-person services, are required to keep a journal of all notarial acts performed which includes the type of identification provided, for 10 years.” The Department of State’s Notary Public website, https://dos.ny.gov/notary-public, provides further details on the information that must be maintained in a journal.

New York has also established new regulations to allow notaries to apply to perform remote notarization under the new Executive Law 135-c. After January 31, 2023, Remote Ink Notarization (RIN) is no longer permitted in New York. RIN has been replaced with electronic notarization. “Electronic notarial acts are notarial acts performed using software to create an electronically generated and saved record. An electronic notarial act may be done remotely whereby the notary and the signer are physically separated but able to communicate with each other simultaneously by sight and sound using means authorized by the Secretary of State.” Current notaries must register to perform electronic notarial acts by applying through this online system. Comprehensive Remote Notarization FAQs may be found here.

Association News

NYSDA’s Winter-Spring Training Calendar

Wednesday, February 15, 2023, 1:30 – 3:30 pm: A Guide to Motion Practice for Family Defenders, with Sara Lewis, Senior Staff Attorney, Center for Family Representation; Vasilios Stotis, Senior Staff Attorney, Center for Family Representation; and Carolyn Walther, Assistant Conflict Defender, Appeals Bureau, Monroe County Conflict Defender’s Office. This program will cover all aspects of family court motion practice, including a discussion of the benefits of motion practice, crafting persuasive arguments, procedural aspects, and highlighting common types of motions used in family defense practice. There is no cost for this program; details and registration information here. DEADLINE FOR REGISTRATION IS TODAY!

Thursday February 16, 2023, 1:00 – 3:30 pm: Fundamentals of Veteran Representation 2023 Part II. Presented by NYSDA’s Veterans Defense Program (VDP), Part II will feature two presentations: Trauma Informed Representation: Panel Discussion, with Roy Diehl, Esq., VDP Deputy Director, Lt Col (Ret); Elyse Sheehan, Esq., VDP Staff Attorney; James Becker, Readjustment Counselor, Buffalo Vet Center, Col (Ret); and Moderator Gary Horton, Esq., VDP Director; and Porter v. McCollum, People v. Jackson: Providing Effective Representation to the Veteran Client, with Gary Horton, VDP Director. There is no cost for this program, but registration is required. Registration for Part II is open through TOMORROW, Wednesday, February 15th.

Thursday, March 2, 2023, 3:00 – 4:30 pm: Ethical Considerations in Cases Involving Forensic Evidence, with Emily J. Prokesch, Trial Attorney with The Office of the Georgia Capital Defender and Vice Chair, Legal Task Group, The Organization of Scientific Area Committees for Forensic Science, National Institute of Science and Technology. This program will offer 1.5 credits in Ethics and Professionalism. There is no cost for this program; details and registration are available here.

Friday, March 10, 2023, 9:00 am – 4:15 pm: 37th Annual Metropolitan Trainer. This year’s all-day program will be held virtually. The program will include presentations on: Court of Appeals Update with Timothy Murphy, Assistant Federal Public Defender, Federal Public Defender’s Office for the Western District of New York; Sentencing Practice Under DVSJA PL § 60.12 with Jillian Modeleski, Senior Trial Attorney, Criminal Defense, Brooklyn Defender Services, and Jana McNulty, Supervising Attorney, Women’s Defense Project, Criminal Defense, Brooklyn Defender Services; Omnibus Motion Practice Under CPL Article 245 with Erik Teifke, Special Assistant Public Defender, Monroe County Public Defender’s Office; and an Introduction to Attorney Cybersecurity with Jerome Greco, Digital Forensics Supervising Attorney, Digital Forensics Unit/Criminal Defense Practice, The Legal Aid Society. The cost for the program is $55 for individuals ($45 for offices sending five or more attendees.) Details and registration are available here.

Friday, March 31, 2023, 12:00 – 2:00 pm: Successful Education Advocacy: Strategies for Family Defenders with Melissa Accomando, Senior Attorney & Team Leader, Education Practice at Brooklyn Defender Services, and Carolyn Lipp, Senior Attorney, Education Practice at Brooklyn Defender Services. This program will address how identifying educational issues and successfully advocating on behalf of clients can lead to positive outcomes in family court. Various family court-related educational issues will be covered, including educational neglect, school stability for children in foster care, and protecting parents’ rights when their children are placed in foster care or otherwise separated from them. There is no cost for this program, but pre-registration is required. Details and information available here.

Save the Date: Tuesday, April 4, 2023, 11:30 – 1:00 pm: What Parent Attorneys Need to Know About the Parental Equity Act and Family Court Act 1017 with Chris Gottlieb, Director, Family Defense Clinic at New York University School of Law, and Amy Mulzer, Senior Staff Attorney for Law and Appeals, Family Defense Practice at Brooklyn Defender Services. This program will cover the recently passed Parental Equity Act and how its implementation will affect both respondent and non-respondent parents in neglect, abuse, and termination of parental rights cases. Additionally, the presenters will discuss other concerns and considerations related to representing non-respondent parents. Details and registration information coming soon.

Sunday, June 11 – Friday June 16, 2023: NYSDA Defender Institute Basic Trial Skills Program. The annual Basic Trial Skills Program will return in-residence to Skidmore College in Saratoga Springs. Applications will be available soon. Anyone interested should contact their defender program chief or NYSDA directly at training@nysda.org.

 training@nysda.org

56th Annual Meeting and Conference: July 30-August 1, 2023. The Annual Meeting and Conference will be held at the end of July at the Saratoga Hilton in downtown Saratoga Springs. We are proud to expand our programming by offering training and networking opportunities for criminal defense and family defense attorneys and members of the defense team. Hotel reservations may now be made at https://book.passkey.com/go/NYSDefendersAssn23. The conference rate is $201 for a standard room. There will be a Welcome Reception Sunday evening, July 30, and the CLE conference will be held Monday, July 31, and Tuesday, August 1. Also, on July 31, we will have our annual meeting of the membership in the morning and our awards dinner in the evening. We look forward to seeing you in Saratoga this summer!