• DOCCS Issues Email List for Scheduling Secure Attorney-Client Phone Calls
• Reminder: Attorneys Get Clients’ Criminal Histories
• U.S. Supreme Court Declines to Enjoin NY’s New Gun Laws While Red-Flag Orders Rise
• Reports on Implementation and Impact of CPL Article 245
• Governor’s State of the State Released  
• Working in a Broken System—Without Breaking
• Mental Health Court Announced in Columbia County
• Commission on Prosecutorial Conduct Still Unformed
• Reminder: DVSJA Statewide Task Force Legislative Working Group Survey
• Acting OCFS Commissioner Appointed

DOCCS Issues Email List for Scheduling Secure Attorney-Client Phone Calls

In the Dec. 10, 2021, issue of News Picks, NYSDA reported on a Nov. 29, 2021, Memorandum that established procedures for arranging secure phone calls. DOCCS has recently released a list of dedicated emails to make arrangements at each facility.

The procedures appear to remain separate from the Directives related to Legal Visits (Directive # 4404) and Telephone Calls (Directive # 4423) and continue to be governed by the original memorandum with this list as a supplement. If and when these procedures are incorporated into Directives, NYSDA will report.

Reminder: Attorneys Get Clients’ Criminal Histories

For those who missed it or are new to criminal defense: please note that defense lawyers are authorized to receive their clients’ criminal history reports. The Division of Criminal Justice Services (DCJS) issued a Feb. 1, 2022, memo to the Office of Court Administration making clear that counsel, or defendants if they are unrepresented, are to receive this information. Fingerprint-based reports must be provided to the defense at arraignment pursuant to CPL 160.40. If no such report is available, government entities that have received name-based reports subject to a Use and Dissemination Agreement do not violate that agreement by providing the report to the defense. This was noted in the Feb. 18, 2022, edition of News Picks, which referred to Governor Hochul’s veto of a bill that would have made public defenders “qualified agencies”; her veto message directed DCJS to issue the memo, which followed.

U.S. Supreme Court Declines to Enjoin NY’s New Gun Laws While Red-Flag Orders Rise

Earlier this month, as reported by the New York Times, the Supreme Court refused to grant an emergency application in Antonyuk v Nigrelli, the ongoing federal case challenging New York’s post-Bruen firearms legislation package. A district court judge granted a temporary injunction in early November, only to be overturned by the Second Circuit later that month. As the case continues, it’s important to continue aggressively litigating gun possession cases – if you ever want assistance, please contact the Backup Center. 

Another component of the State’s aggressive approach to firearms has been the increased use of the “red-flag laws,” or applications for Emergency Risk Protection Orders (ERPOs). According to research conducted by The City, NYC District Attorneys made six ERPO applications in the four years prior to the August 2022 implementation of the legislative package; there have been 53 since. That trend continues statewide – there were 1,464 in that previous four-year span, as opposed to 3,549 since August 1.

In that light, we now turn to two specific ERPO cases from Monroe and Westchester counties that are of particular interest as defenders ramp up their litigation efforts in that sphere. 

ERPO Case Law Updates

Unconstitutional in Monroe County: G.W. v C.N., 2022 NY Slip Op 22392 (Supreme Ct, Monroe Co 12/22/2022) 

The Monroe County Supreme Court recently held that CPLR article 63-a is unconstitutional as it fails to protect a New York citizen’s right to bear arms under the Second Amendment of the U.S. Constitution, fails to provide due process rights to the respondent, and may have collateral consequences that deprive non-respondents of their Second Amendment right. Respondent, Ms. N., moved to declare CPLR 6342 unconstitutional prior to facing a hearing issuing an ERPO against her. Petitioner, Mr. W., alleged she was attempting to access his safe, which contained firearms, which he alleged Ms. N. could use to harm her herself, him, or others.

The court noted that most of the 63-a referrals would come from laypeople such family members, police officers, and school administrators to name a few, whereas most of the Mental Hygiene Law (MHL) 9.39 referrals are made by licensed professionals who are qualified determine someone’s mental condition. It asked the critical question, “[s]ince MHL §9.39 and CPLR §63-a both employ the same definition for ‘likelihood to result in serious harm,’ why should respondents under Mental Health Law be granted greater safeguards (such as having their case be reviewed by a physician with the educational background and experience to make such a determination) than matters pursuant to CPLR 63-a in which ‘lay people’ make such a determination?” 

The court noted that checks and balances exist under MHL 9.39 when a person is involuntarily hospitalized for care and treatment. There, a lay person such as a police officer may make the initial determination that an individual’s conduct is “likely to result in serious harm” while a psychological and/or psychiatric professional thereafter monitors that individual “to make a proper psychological or medical determination to corroborate, or disavow, the officers [sic] initial opinion.” Similar checks and balances and due process guarantees are not present, however, under CPLR article 63-a proceedings as they are in Rivers hearings (Rivers v Katz, 67 NY2d 485 [1986]), and other assessments of an individual’s mental health when contemplating removal of a fundamental right. 63-a proceedings do not mandate testimony by a mental health expert or guarantee of respondent’s representation by counsel.

Another possible outcome of CPLR article 63-a that the court was leery about was that a search warrant issued to seize firearms of the respondent may result in the seizure of firearms owned or possessed by those other than respondents living in the same residence. The lack of due process for non-respondents prior to having their firearms seized is non-existent and the steps they must take under 63-a to get the firearms back are overly onerous, infringing their Second Amendments right.

Constitutional in Westchester County: Anonymous Detective at Westchester County Police v A.A., 71 Misc 3d 810 (Supreme Ct, Westchester Co 2/10/2021)

The Westchester County Supreme Court found in 2021 that the ERPO statute was constitutional when it was presented with a motion to declare 63-a unconstitutional and unenforceable. There, the respondent “was being treated at Putnam Hospital allegedly due to suicidal thoughts.” While hospitalized, the respondent denied possessing any firearms. Once the respondent’s mother confirmed the presence of a rifle in the home, the hospital informed her that the respondent would not be released until the firearm was removed. Police arrived at the residence to seize the weapon and the respondent’s mother allegedly reported to police that “respondent was a threat to himself and had also threatened her in the past.” After discussion with police, the respondent was arrested for third-degree criminal possession of a weapon and criminal possession of a rapid-fire modification device and the detective filed for a TERPO.

The respondent made the following arguments in his motion to declare the ERPO statute unconstitutional and enforceable: (1) vagueness; (2) violation of probable cause and search and seizure provisions; (3) violation of right against self-incrimination; (4) violation of right to counsel; and (5) violation of the Second Amendment right to bear arms.

The court found that constitutional rights may be limited in certain circumstances, citing the respondent’s denial of possessing a firearm as a valid justification for the search and seizure. The court also dismissed the respondent’s argument that he had the right to counsel, noting that the ERPO is a civil statute and the respondent cited no case law to support his position. The court determined that an intermediate level of scrutiny was the most appropriate to determine whether the ERPO statute infringes upon Second Amendment rights and summarily rejected the respondent’s argument, not analyzing whether any mental health professional still believed the respondent was a danger to himself or others. The rejection lacked a clear-cut rationale while the court hinted that the respondent was not a law-abiding citizen and thus a “limited-in-time restriction” of his right to bear arms was not a Constitutional violation. 

NYSDA will continue to track further developments on ERPO constitutionality and enforceability.

Reports on Implementation and Impact of CPL Article 245

2022 OCA Report

In Fall 2022, the Office of Court Administration (OCA) distributed a survey of criminal court judges regarding discovery reform of CPL article 245. This was the newest round of surveys under the OCA and DCJS joint obligation under Judiciary Law 216(5) to provide annual reports of the discovery legislation reforms. DCJS has not issued its annual report yet. Here are some pertinent findings, divided into statewide, NYC, and outside of NYC (“ONYC”) with a link to the full report here.

Perceived Prosecution Compliance

• “Only 29% of the judges in NYC reported that discovery obligations were met by the prosecution most of the time compared to the vast majority (79%) of the ONYC judges.”
• “Conversely, 72% of the NYC judges reported discovery obligations were rarely or sometimes met by the prosecution while only 21% of the judges ONYC said the prosecution rarely or only sometimes meet their discovery obligations.”
• “The vast majority of local court judges (78%) reported that the prosecution meets their discovery obligation most of the time compared to 51% of Supreme/County court judges.”
• “Only 22% of the local court judges said that discovery obligations were only rarely or sometimes met compared with 49% of the Supreme/County court judges who thought this.”

Compliance Failures

• “NYC judges generally reported with greater frequency than the ONYC judges that when discovery was not met, it was often due to one of the following issues: discoverable materials being voluminous, dispute over whether materials are discoverable, parties had not acted with due diligence or materials otherwise not in the prosecution’s control or custody.”
• “Conversely, ONYC judges were generally more likely to report the reasons above never impacted discovery from being met.”
• “The most common reason cited by NYC judges for discovery often not being met was dispute over whether the materials are discoverable (63%). Only 8% of the ONYC judges cited this as the reason discovery was often not met.”
• “The most common reason cited ONYC for discovery often not being met was materials otherwise not in the prosecution’s custody or control (19%).”

Remedies for Non-Compliance

• Continuance and further discovery order were the most-utilized remedies for discovery non-compliance for both NYC and ONYC judges regardless of whether in Supreme/County or local court. “NYC respondents indicated they were more likely than their ONYC counterparts to use adverse inference charge as a sanction for non-compliance.”

Impact on 30.30 Motions

• “The majority of NYC judges (62%) reported that the discovery legislation has greatly or moderately led to an increase in 30.30 release motions being granted” while 68% of ONYC judges found that the changes in legislation has NOT caused an increase in 30.30 motion grants.
• “More than two-thirds of the local court judges (69%) reported that the discovery legislation has not caused an increase in 30.30 release motions being granted compared to 53% of Supreme/County judges who reported that the discovery legislation has greatly or moderately increased 30.30 release motions being granted.”
• “45% of NYC respondents reported 30.30 dismissal motions being granted greatly increased under the discovery legislation, while another one-third (33%) reported a moderate increase, the majority of ONYC judges (65%) indicated that the discovery legislation did not lead to an increase [in] the number of 30.30 dismissal motions being granted.”
• “The majority of local court judges (63%) indicated that the discovery legislation did not lead to an increase [in] the number of 30.30 dismissal motions being granted, while the majority of Supreme/County judges (55%) reported that the legislation did greatly or moderately increase 30.30 dismissal motions being granted.”

Type of Evidence Impact on Difficulty Meeting Discovery Guidelines

• The majority of ONYC judges reported that different evidentiary categories (DNA, Forensic, Gang, Medical Records, Multiple Defendants, Police Records, and Social Media) did not make it difficult to meet discovery guidelines. Supreme/County court judges reported similarly, but “indicated that these situations made meeting discovery timelines very or moderately difficult.” Contrasted to NYC judges, “who indicated that these situations made meeting discovery timelines very or moderately difficult.”
• “In NYC, the majority of judges reported that situations involving DNA and police records made meeting discovery timeframes very difficult (60% and 54% respectively).” However, judges ONYC did not find situations involving DNA and police records significant obstacles to meeting discovery timeframes. Only 18% reported great difficulty meeting timeframes when DNA was involved and only 16% reported great difficulty meeting timeframes when police records were involved.

Additional OCA information on this topic including their Court Activity Dashboard can be found here.

Other Reports

The report DCJS issued last year included survey results from district attorneys, law enforcement agencies, and forensic laboratories; the report was supplemented with survey results from institutional public defense providers. We are awaiting a new report from DCJS.

Due to the lack of information regarding the impact of discovery reform, NYSDA and other defense organizations undertook to survey a wide range of public defenders, assigned counsel, and private counsel. A report on those survey results was announced in the Apr. 1, 2022, edition of News Picks. The New York Law Journal covered the release of last year’s report. NYSDA’s Susan Bryant is quoted: “[t]his report offers an important reminder of why New York enacted comprehensive discovery reforms in 2019. Our old laws kept people in the dark about the evidence against them and resulted in wrongful convictions, pretrial delays, and unfairness. The new discovery laws have had a positive impact on the lives of New Yorkers around the state. Defense attorneys are able to provide meaningful advice to their clients, conduct informed investigations, file more specific and informed motions, and engage in meaningful negotiations. …. New York has taken the blindfold off and this report makes clear that we must never put it back on.”

A recent publication by the Manhattan Institute paints a very different picture of the impact of discovery reform. That report pays little heed to the reasons for discovery reform in New York and the constitutional and ethical obligations of prosecutors. NYSDA concurs with the statement issued by the New York State Association of Criminal Defense Lawyers objecting to that report: “The law provides substantial safeguards to both parties, ensuring that crimes deserving of prosecution can be prosecuted with reasonable levels of diligence. No amount of disingenuous fearmongering will alter the fact that mandating a level playing field for those accused results in a far more just system, reduces gratuitous prosecution and ensures that the requirements of the NYS and Federal Constitutions are fully compiled with.”

Governor’s State of the State Released  

The Governor presented her 2023 State of the State (SOTS) on January 10th. The Governor’s speech emphasized the need for significant state investment in mental health services, but also included a plan to revisit the bail law and provide increased funding for prosecutors without similar funding for the defense. Other parts of the Public Safety portion of the 2023 State of the State Book outline the Governor’s plan to:

• Double Investment in Alternatives to Incarceration
• Triple Investment in Reentry Services to Improve Public Safety
• Expand the State’s Gun-Involved Violence Elimination Program
• Rebuild the State Police with a Targeted Focus on Fighting Serious Crimes
• Expand the Work of Crime Analysis Centers and Include New York City
• Reduce Gun Violence and Violent Crime Amongst Individuals Under Parole Supervision
• Combat the Flow of Fentanyl Into Our Communities

Soon after release of the SOTS, news outlets began reporting, including Politico, the Times Union, and the New York Law Journal. A joint statement issued by NYSDA, the Chief Defenders Association of New York, and the New York State Association of Criminal Defense Lawyers addressed two parts of the State of the State message; WNYT.com covered the statement.

Working in a Broken System—Without Breaking

Recognition that public defense work presents unique stressors which should be addressed is growing. The National Association for Public Defense is presenting a 10-week course, Sustaining and Supporting Well-Being in Public Defense, beginning on February 6th; deadline for registration is January 27th. More generally, the New York State Bar Association is providing opportunities to examine mental health issues in the legal system, through a Task Force on Mental Health and Trauma Informed Representation and a recent presidential summit; both include examination of “the impact that representing people with mental illness or living with trauma has on attorney well-being.” And NYSDA will continue its practice of recognizing the need for change and best practices regarding mental health issues affecting public defense team members and their clients. Past examples include: a 2020 CLE presentation on Centering Ourselves: The Bridge Between Diversity, Equity, Inclusion and Employee Wellness; an item in the August-October 2019 issue of the Backup Center REPORT, entitled It is Not Just Clients Who Face Mental Health Issues, and references included in other materials. Contact the Backup Center for information.

In a two-part interview of a former defense investigator who worked on death penalty cases and many others, The Watch provides an in-depth look at practices and major defects in the criminal legal system, particularly public defense; the emotional strain of the work is addressed. Andrew Sowards’ observations from over two decades as an investigator range broadly. He describes learning about investigations without formal training or guidance and about law enforcement breaking the rules regularly. He describes a growing awareness of failures in the system. He talks about learning from mitigation experts and others that secondary trauma is real, and he notes its effect on people working in public defense. And he talks about how people affected by trauma need someone who helps, and how his capital clients never had that, how anyone who “gave them any attention at all” did so only to hurt them. A core observation that Sowards makes is one that lies at the heart of client-centered representation, which NYSDA encourages and supports through its Basic Trial Skills Program and other work: “I think that when you actually care about your client’s well-being, you’re a better attorney. You’re better able to defend people. The people who see these folks as human beings look to the client’s own history and try to contextualize what happened. And that can be an important thing to convey to a jury.” Follow the links for the first half of the interview and the second half of the interview.

Slate, in a new State of Mind section presented with Arizona State University to take a practical look at the mental health system, posted an article January 4th dealing with public defense. It describes a change in public defense communities, with many abandoning an attitude of needing to tough it out when facing “the painful toll of facing social injustice and inequality on a daily basis.” Now, some assert “that recognizing and confronting the mental and emotional toll of their work” is a better approach. A defender described in the article uses the concept of “moral injury,” which originated in studies of military veterans, to understand the harm defenders may experience from “the ‘demands of working in a punitive system with laws and practices that target and punish those who are the most disadvantaged.’” Efforts in Colorado and around the nation to create mental health-focused initiatives to support public defense staff members are noted. But the article says efforts go beyond “self care,” with some seeking to turn “a critical lens back on the systems in which public defenders work.” By doing that, it is asserted, “efforts to improve mental health for public defenders and advocacy efforts directed at changing the criminal legal system itself” will not be separate fights but will “inform and feed one another.”

Mental Health Court Announced in Columbia County

On January 6th, HudsonValley360.com posted an article about the designation of the Columbia County Courthouse as the site of a mental health court. The only Third Judicial District mental health court currently noted on the Unified Court System website is in Albany County. That court’s creation was reported in the Mar. 19, 2021, edition of News Picks under a headline that observed, “Such Courts Not a Catch-All Fix.” Then as now NYSDA encourages lawyers to reach out to the Backup Center when they encounter issues specific to such courts.

Commission on Prosecutorial Conduct Still Unformed

As noted in a online publication on the West Coast, Governor Hochul has not announced her allotted appointments to the Commission on Prosecutorial Conduct that was signed into law in June 2021 before she became Governor. Perhaps the Davis Vanguard picked up this story because the entity that was a primary impetus for the Commission’s creation in New York State—It Could Happen to You—has said to watch for “more detailed reporting on Prosecutorial Misconduct in the State of California and elsewhere in the coming year [2023].” The need for the Commission has been repeatedly noted in News Picks, including in the Sept. 23, 2022, edition.

Reminder: DVSJA Statewide Task Force Legislative Working Group Survey

The Legislative Working Group of the Domestic Violence Survivors Justice Act (DVSJA) Statewide Task Force is seeking input on practice around the state and suggestions for legislative amendments that can be submitted to enhance the implementation of the statutory goals. All attorneys are invited and encouraged to participate. The brief survey is available here.

Practitioners are reminded that NYSDA has a DVSJA Attorney Support Project available to assist attorneys interested in information and resources. Please contact Senior Staff Attorney Stephanie Batcheller at SJBatcheller@nysda.org or 518-465-3524 x 41.

Acting OCFS Commissioner Appointed

The NYS Office of Children and Family Services (OCFS) has a new acting commissioner, Suzanne Miles-Gustave, Esq. According to the announcement on the OCFS website, Miles-Gustave’s experience includes private practice in NYC, a clerkship with the Sixth Circuit Court of Appeals, positions as an assistant district attorney/director of external affairs for the Westchester County District Attorney’s Office, and senior director of strategic initiatives for the New York City Department of Education. According to a report by the Imprint Youth and Family News, the temporary appointment was made at the end of December 2022, after Sheila Poole resigned to take a position on the federal level.

NYSDA continues to demand accountability from the family regulatory system that regularly and without just cause continues to target families of color. We are hopeful that a permanent OCFS Commissioner, who needs to be nominated by the Governor and approved by the Senate, will finally address these inequities that have ripped apart too many families.

Association News

Backup Center REPORT Nov.-Dec. Issue Now Online

The final 2022 issue of NYSDA’s newsletter, the Public Defense Backup Center REPORT, is available on the NYSDA website. 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.

NYSDA’s Winter-Spring Training Calendar

Thursday, February 2, 2023, 2:30 – 4:30 pm: Working with Clients with Limited English Proficiency. Presented in collaboration with the Western New York Regional Immigration Assistance Center (WNYRIAC), speakers will include Sophie Feal, WNYRIAC Supervisor; Melissa Peña, Social Worker, WNYRIAC; Pamela Kefi, Executive Director, Deaf Access Services; and Karen E. Lillie, PhD, JD, Associate Professor of Linguistics at SUNY Fredonia. There will be no cost for this program; details and registration information coming soon. 

Tuesday, February 14, and Thursday February 16, 2023, 1:00 – 3:30 pm each day: Fundamentals of Veteran Representation 2023 Parts I and II. Presented by NYSDA’s Veterans Defense Program (VDP), sessions will include: Part I, Military Mitigation: Telling the Client’s Story with Roy M. Diehl, LTC, US Army (Ret), VDP Deputy Director; Military Family Law with Elyse Sheehan, VDP Staff Attorney; and Part II, Cannabis Law & Medication Assisted Treatment for Veterans with Blair Hill, VDP Staff Attorney; and Porter v. McCollum, People v. Jackson: Providing Effective Representation to the Veteran Client, with Gary Horton, VDP Director. There will be no cost for these programs, but registration is required. Registration information for Part I and Part II can be found here. 

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 will be no cost for this program; details and registration information coming soon.

*Change of Date* Thursday, March 2, 2023, 3:00 – 4:30 pm: Ethical Considerations in Cases Involving Forensic Evidence, with Emily J. Prokesch, Office of the Georgia Capital Defender. There will be no cost for this program; details and registration information coming soon.

Friday, March 10, 2023: 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. Details, including the program schedule and fees, 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. 

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!