City Defenders Sue OCA Alleging Plan for In-Court Appearances Violates Substantive Due Process, the Americans with Disabilities Act, and Section 504 of the Rehabilitation Act of 1973
The suit, filed in the Southern District of New York on July 14th , by the Bronx Defenders, Legal Aid Society , Brooklyn Defenders Service, New York County Defenders, Queens Defenders, and Neighborhood Defender Service of Harlem against OCA, states:

“As long as 30.30 continues to be suspended, any rush in criminal court proceedings is somewhat hollow, from the perspective of the defendant’s due process rights, because the prosecutor faces no legal consequence for delaying the ultimate resolution of the case and the defendant has no right to demand resolution. The effect of the In-person Order is to present opportunities to revoke bail and/or obtain guilty pleas without the corresponding right of the defendant to demand a speedy trial, and to increase the chances that defendants will feel pressure to accept a plea in order to avoid remaining in jail indefinitely while their case languishes in a criminal system that is not prepared to offer them due process.” 

The lead up to this filing has been well documented in meetings with and letters to OCA as well as news reports. A New York Daily News article discusses the judiciary’s decision to require some in-person court appearances and the expressed concern that the decision unnecessarily endangers the health of lawyers, court officers, and everyone else who works in New York City courthouses. Concerns were further expressed in an Opinion piece by public defender Lauren Roberts, “When Courts Become Superspreaders: Reopening Some Functions in Person Risks Pandemic Resurgence.” She explains “Superspreaders are invisible but deadly. They are most prolific in crowded spaces where social distancing is impossible and human interaction is essential.” She further states, “ Ironically, the cases to be heard are not ones involving those languishing in jail while their rights to a speedy trial are suspended indefinitely. Instead, the court has ordered those who are at liberty, doing their best to contain the spread within their own communities, to appear in person.” The American Bar Association also covered the issue on July 15, 2020.

Frustrations Grow Outside of New York City, Even Amongst Prosecutors and Law Enforcement
Documented in a Spectrum News report, the Oneida County District Attorney admits there’s backlog, but that’s not all he’s focused on. “What the 5th Judicial District has done is they’ve asked each county to come up with their own plan because each county’s courtrooms and where the DA’s office is and all those things are unique,” said Oneida County DA Scott McNamara. He explains those considerations include “how to safely move jurors and witnesses, to finding ways to clean handles after every person touches them, to figuring out what to do if a potential juror doesn’t want to wear a mask and upgrading technology for the changes.” The pandemic led to the closures of many courtrooms. Now, work and trials are backed up, and it is unclear what the future will look like. “I mean, it is a mess. It is a total mess,” said Oneida County Sheriff Robert Maciol.

Court Officer Unions Push Back on OCA’s Mandated Courthouse Temperature Checks
In an update on July 13 th by the Supreme Court Officers Association, court officers express concerns about their role in conducting temperature checks at courthouses. Peter Piciulo, the president of the Court Officers Benevolent Association of Nassau County (COBANC), said that although he and his members were not opposed to the taking of temperatures, the practice was not adequately assessed beforehand. “In today’s climate, a uniformed officer pointing something at someone’s head isn’t the smartest thing.” He suggested to OCA that they use less cumbersome and invasive thermal imaging technology, which they are using at the COBANC offices, but he did not receive a response.

DiFiore Update for July 13 th Includes Discussion of In-Person Appearances 
While defenders and court personnel express concerns with the current safety risks posed to staff and clients, on July 13 th , Chief Judge DiFiore’s weekly message ( transcript ) outlined the expansion of court operations and in-person appearances for those who have entered Phase 3.The expansion includes:
  • Conferencing of felony cases where the defendant is at liberty;
  • Selected plea and sentencing proceedings for defendants at liberty;
  • Arraignments of defendants who have been issued desk appearance tickets;
  • A limited number of preliminary hearings in cases involving defendants being held in jail on felony complaints;
  • A limited number of essential Family Court proceedings; and
  • A limited number of bench trials.

New OCFS Guidance on In-Person Visitation
This week the Office of Children and Family Services (OCFS) issued new guidance to counties and residential programs regarding family visitation for children in DSS placement during the coronavirus pandemic. The new guidance, issued by the Division of Child Welfare and Community Services, modifies the guidance issued by OCFS on March 20th when the pandemic was in its early stages. That guidance provided for virtual visitation as an alternative to in-person visits “[w]here an in-person visit would jeopardize the health of children or families, staff, and or, both .…” Family Court defenders have reported to NYSDA that DDS offices in various places throughout the state have been summarily refusing to offer in-person visits; as a result, some parents have not been allowed to be in the same room with their children since the beginning of the pandemic.

The new guidance seemingly encourages in-person visits, and provides guidelines to counties and residential programs on how to facilitate such, safely. Referring to what has been the norm of virtual visits, OCFS states in the July 15 th memo that, “[a]fter the successful efforts by New Yorkers to flatten the curve and reduce virus transmission, OCFS recognizes the need for youth and families to begin resuming other types of contact with one another in a planful manner, as safely as possible.” It goes on to state that, “[e]ach child and family situation must be considered for an individual determination regarding visitation. Granting physically present visitation should be the goal .” [Emphasis added.] Please see the memo for the full guidance, which suggests a list of standards for minimizing the transmission of the coronavirus, including temperature checks, masks, and hand sanitizer for all visitation participants. 


With the Repeal of Civil Rights Law   50-a, Law Enforcement and Prosecutors Slow to Disclose Records 
NYSDA is hearing reports that in several jurisdictions, prosecutors are not complying with their obligation to turn over law enforcement disciplinary records. In some instances, prosecutors are directing the defense to seek production directly from law enforcement agencies. As reported by Muckrock , at least 12 police departments in the state claim to have no records of officer misconduct from the past 50 years, according to responses to Freedom of Information Law (FOIL) requests . In NYC,  Mayor de Blasio announced a database of disciplinary case documents would be created and posted online, which was scheduled to happen yesterday, July 15th. In response, a coalition of unions representing police, firefighters, and corrections officers filed suit against the City seeking to block the online database. Supreme Court Judge Carol Edmead  issued a stay   on the "public disclosure of documents issued before June 12 while the case is transferred from state court" to the U.S. District Court, Southern District of New York. 

Outside of NYC, it has been reported  that in both  Utica  and Rochester,  disciplinary records are to be published online .  “We have already received a number of FOILs asking for such records, including one for all [Rochester Police Department] RPD disciplinary records,” said Justin Roj, Rochester city communications director. “This new database will allow everyone to access these records without the delay of processing a FOIL request.”  Syracuse  officials won't commit  to posting police personnel files of its 427 officers online, despite proof from its Thruway neighbor, Utica, that it can be done.

NYSDA has added a Law Enforcement Disciplinary resource page that we will continue to update as materials and resources become available. Defenders are encouraged to make a record if disclosure is not happening in their cases and should contact the Backup Center for case-specific guidance. 

Use of Law Enforcement Disciplinary Records During Preliminary Hearings
The Center for Appellate Litigation’s July 2020 edition of “Issues to Develop at Trial,” addresses the right to cross-examine and impeach police officers at preliminary hearings using disciplinary records. There are some helpful tips for defenders to consider as disciplinary materials become available. Thank you to the Center for Appellate Litigation for continuing to share this resource with the defense community.

Dismissal of Charges Clears Path for Civil Claim by Albany Man Arrested for Filming an Arrest Back in June
The Times Union reported on July 13, 2020, about a case where an Albany man was arrested while filming the arrest of another individual. Kimani Addison’s attorney, Mark Mishler, refused an earlier offer from the prosecutor’s office to dismiss the charges before trial, a strategic move to preserve Addison’s right to sue the city for wrongful arrest. Instead, Mishler said his client agreed to a bench trial Monday afternoon where prosecutors declined to present a case, prompting the court to dismiss the charges of inciting a riot and resisting arrest.

This case is a good example of how defenders need to consider the implications of accepting an adjournment in contemplation of dismissal. “The issue is there are some court decisions that say if a defendant accepts a dismissal ... it can be a barrier or bar to pursuing certain types of civil claims, most importantly, malicious prosecution,” Mishler said. “And really what I wanted them to say on the record was: There was no factual basis and no legal basis for these charges and therefore we are not pursuing these charges. And the district attorney’s office wouldn’t say that on the record, so the only alternative was to have a trial.”

Regulations Governing Parole Release Conditions Take Effect
As noted in the Jan. 17, 2020 edition of News Picks, the NYS Department of Corrections and Community Supervision (DOCCS) repealed and replaced the regulations governing release conditions. The new regulations , 9 NYCRR 8003.2, took effect on July 8, 2020. Other amendments to parole regulations will take effect on Dec. 8, 2020.

Other recent information of note regarding parole and community supervision:
  • A summary of the re-opening process for DOCCS’s community supervision offices appears in the DOCCS reopening plan.
  • The July 2020 DOCCS Fact Sheet offers summary statistics about the number of people who are currently under parole supervision and which region and bureau is responsible for the supervision as well as the number of parole and senior parole officers assigned to each office. Contact information for community supervision offices is posted on the DOCCS website at https://doccs.ny.gov/search/community-supervision-offices.
  • Last week, DOCCS updated Directive #2014, which governs access to records for parole interviews, hearings, or appeals in accordance with 9 NYCRR 8000.5. The Freedom of Information Law, which is discussed in Directive #2010, does not apply to requests made pursuant to section 8000.5.

* Save the Date * NYSDA will be offering a CLE webinar about handling parole cases on Sept. 9, 2020. We hope that you will be able to join us for this important training. More information will be available in August.

Association News

Join Us Virtually for NYSDA’s 53rd   Annual Conference, July 27-31: “Transforming Public Defense in a Crisis World” 
Registration is open and the full schedule is  posted  on our website. Sessions include Discovery Reform 2020; Bail Law and Practice Update; Recognizing Systemic Bias; Protecting the 6th Amendment in a Post-Pandemic and Emerging Anti-Racist World; Family Court Law Updates; Forensic Expert Collaboration and Evidentiary Issues; updates from the Court of Appeals and U.S. Supreme Court; Practicing Virtually; and more.
 
NYSDA is excited to offer this program at a low cost of $125/person ($100/person for groups of 5+) which covers  all  CLE sessions for the week and a total of 20 credit hours of CLE. NYSDA is dedicating this year’s conference to  Charles F. O’Brien . For questions not answered on our  conference website , please email Megan O’Toole at [email protected] .

 
Mark Your Calendar for VDP’s August Webinars
NYSDA’s Veterans Defense Program (VDP) is offering the following webinars, with presenters from the VDP, in August. Registration will open soon; watch for details.
 
Mitigation: It’s All About the Client (Gary Horton)
Mon., 8/17/2020 at 1:00 – 2:00 PM
 
Interview of the Veteran: Getting a Complete Military History (Sandra Cassidy)
Wed., 8/19/2020 at 1:00 – 2:00 PM
 
PTSD, TBI and Suicide Within the Veteran Community (Blair Hill)
Fri., 8/21/2020 at 1:00 – 2:00 PM