Register today at https://www.nysda.org/page/NYSDA54thAnnualConference.

Last week, Governor Andrew Cuomo announced an end to the state disaster emergency declared on March 7, 2020, to fight COVID-19. Executive Order (EO) 210, signed on June 24, 2021, rescinded EOs 202 to 202.111 and 205 to 205.3 as of June 25th. NYSDA, along with many others, is examining the ramifications of the rescission and continuing effects of the 15-month-long emergency, while remembering that future threats—new variants, new viruses, and also dangers to due process stemming from changes during the emergency—cannot be ignored.

In-person arraignments have been a major topic. On June 29th, the new Director of the Indigent Legal Services (ILS) Office, Patricia Warth, issued a Notification Regarding Representation at Arraignment. It contains this statement: “Given the Governor’s June 24 announcement, the end of the public health emergency that allowed for virtual arraignments, and the Hurrell-Harring Settlement Agreement and statutory requirements for in-person arraignments, ILS will no longer support representation of criminal defendants at virtual arraignments. We understand that, in some counties, providers may need a reasonable period to transition from virtual to in-person representation at arraignments. Providers requesting such an interim period should contact ILS immediately.”

Chief Judge Janet DiFiore, in her June 28th message, noted “the resumption of in‐person day arraignments in the New York City Criminal Court in Manhattan, to be followed by Kings County next Tuesday, July 6th, and by Bronx, Queens and Richmond Counties on July 12th.” She also indicated that work was ongoing “with the State Magistrates’ Association and criminal justice stakeholders on plans to resume in‐person arraignments across the rest of the state,” and noted the continuing Centers for Disease Control and Prevention guidance requiring unvaccinated persons to wear masks and practice social distancing indoors.

The Queens Daily Eagle covered the return to in-person arraignments. DiFiore was quoted, “‘The time is right to restore face-to-face interaction in these important proceedings where charged individuals have the critical opportunity to interact with their lawyers for the first time, and where the Court first exercises its jurisdiction and authority over the defendant ….’” On June 29, 2021, the New York Daily News reported on return to in-person arraignments in Manhattan. “‘Today’s resumption of in-person arraignments is yet another facet in our continuing goal of full resumption of normalized court operations in both the city and state,’ said Lucian Chalfen, the Office of Court Administration’s chief spokesman.”

Updated protocols for most judicial districts can be seen on NYSDA’s Coronavirus 2020 Court Re-Opening Plans webpage. Additional documents are being added as they are received.  

Defenders with questions about going forward in this newest era, or who have information about problems and/or solutions arising from the most recent stage of the pandemic in New York, are encouraged to contact the Backup Center at [email protected] or (518) 465-3524.

In a follow up to our News Picks from NYSDA Staff on June 21st, here are some new resources on the Driver’s License Suspension Reform Act (DLSRA):

A press release issued by the Fines and Fees Justice Center notes, “New York’s Driver’s License Suspension Reform Act takes full effect, ending the state’s widespread practice of suspending an individual’s driver’s license when they cannot afford to pay a traffic fine. This legislation will allow hundreds of thousands of New Yorkers to regain their driver’s licenses — and with it their access to work and other necessities. Sponsored by Senator Tim Kennedy of Buffalo and Assemblymember Pamela Hunter of Syracuse, New York’s legislation was approved by wide margins and signed into law by Gov. Cuomo last year.” The DLSRA was covered by Spectrum News this week and Katie Adamides of the Fines and Fees Justice Center was quoted: “‘What was typical for people to experience under the way the law was before, if they couldn’t afford to pay in full, upfront, their license would be suspended’ .… ‘And then if they continued to drive, that could be considered a crime. If they did that enough times, it could become a felony. So this became a fast track for criminalizing poverty.’”

In Matter of Crawford v Ally, 2021 NY Slip Op 04082 (1st Dept 6/24/2021), the petitioner successfully appealed the denial of a writ of mandamus based on mootness, where she sought to compel a Bronx County Criminal Court Judge to hold an evidentiary hearing concerning the appropriateness and scope of a temporary order of protection (TOP) that had been issued against her. This is a case that should interest criminal and family court attorneys alike, especially in this era of COVID-19 that has seen unprecedented delays in court cases being resolved, causing temporary orders to be extended far past their intended use.

Ms. Crawford, a mother of two, was arrested and charged based on a sworn complaint by her partner, alleging that she assaulted him. At arraignment, the court issued a temporary order of protection that, among other things, prohibited Ms. Crawford from entering her residence, except to retrieve her belongings. As reported in the June 17, 2021 edition of the New York Times, and then again on June 25, 2021, “[t]he case eventually unraveled, but before it did, Ms. Crawford spent 88 days sleeping in her car and crashing on a friend’s couch, effectively separated from her two young children.” “‘It’s punishing somebody before they get convicted of anything, in a huge way,’ said Ms. Crawford’s lawyer, Eli Northrup, of the Bronx Defenders.”

Shortly after the TOP was issued, the petitioner asked that it be modified, and that she be allowed to move back into her apartment. The request was denied. A couple of weeks later, the petitioner again asked for a modification and as proof that the complainant did not reside with her, she proffered a copy of her lease addendum and family composition, that listed only herself, her brother, and her two children as authorized occupants. Ms. Crawford’s second modification application was denied. But the criminal case against her was eventually dismissed, approximately three months later, resulting in the TOP being vacated. The lower court dismissed the petition for writ of mandamus as moot.

The First Department determined “that the Criminal Court’s initial failure to hold an evidentiary hearing in accordance with petitioner’s due process rights after being informed that petitioner might suffer the deprivation of a significant liberty or property interest upon issuance of the TOP falls within the exception to the mootness doctrine ….” “In order to issue a TOP, and thereby deprive a defendant of significant liberty and property interests, there must be an articulated reasonable basis for its issuance.”

As to the hearing, the opinion says, “[t]his Court need not articulate the precise form of the evidentiary hearing required. At a minimum, however, when the defendant presents the court with information showing that there may be an immediate and significant deprivation of a substantial personal or property interest upon issuance of the TOP, the Criminal Court should conduct a prompt evidentiary hearing on notice to all parties and in a manner that enables the judge to ascertain the facts necessary to decide whether or not the TOP should be issued .…”

We are hearing about possible efforts to limit the scope of such hearings, which are now being referred to as Crawford hearings. Please contact the Backup Center at [email protected] or (518) 465-3524 if clients are not being given a meaningful hearing.

Brooklyn Defender Services announced the launch of a know your rights advocacy website for parents who find themselves the subject of a child protective services investigation, Your Family, Your Rights. As a social media toolkit about the new site notes, “[t]his tool, created in collaboration with a steering committee of advocates and focus groups of parents, is designed to inform parents who are being investigated by New York City’s Administration for Children’s Services (ACS) of their rights and how to navigate an investigation; help parents to connect with advocates to guide parents through the investigation process; and provide information on how to get involved with other parents who have been impacted by the family regulation system and are working to change it.” Even though this website is designed for parents within New York City, it provides information that could be helpful for parents around the state. 

In light of the passage of the Marijuana Regulation and Taxation Act (MRTA), including the repeal of CPL article 221, which was discussed in News Picks from NYSDA Staff on April 9, 2021, the Unified Court System has issued a Marijuana Resentencing Application CPL440.46-a. Defenders are encouraged to review their prior cases to identify clients who are eligible for resentencing under the MRTA, and if there are any questions regarding the impact of resentencing on a client’s immigration status, contact the Regional Immigration Assistance Center (RIAC) in your area. Contact information for New York’s RIACs is available here. The Immigrant Defense Project, in coordination with The Legal Aid Society, The Bronx Defenders, and the Drug Policy Alliance, will be presenting a Train the Trainer on July 13th and July14th from 4:00 - 5:30 pm. For more information and to register, visit https://tinyurl.com/MRTATraining.

According to the history of the Guide, in May 2021, the NYS Unified Court System’s publication, “Guide to New York Evidence,” was updated to add the following rules:

The NYS Unified Court System recently issued a number of updates to the Criminal Jury Instructions 2d. Some of the changes include:

When Philadelphia learned that Catholic Social Services (CSS), a foster care agency, would not certify same-sex couple as foster parents, the city refused to renew CSS’s foster care contract unless the policy was changed. The U.S. Supreme Court considered CSS’s assertion that the city’s actions violated the First Amendment and held that the city unconstitutionally burdened CSS’s free exercise of religion. Fulton v Philadelphia, No. 20–5904 (6/17/2021). An AP article about the decision quoted the deputy director of the American Civil Liberties Union LGBTQ & HIV Project, who stressed that Fulton and the case of the Colorado baker who refused to make a wedding cake for a same-sex couple both involved “narrow, very fact-specific decisions that leave non-discrimination laws and policies standing and fully enforceable by governments ….” While the decision was unanimous, two concurring opinions—one of which concurred only in the judgment—demonstrate that the court is not unified in its approach to the issue; three concurring conservative justices, as the AP article notes, would have gone farther. They called for the re-examination and overruling of Employment Div., Dept. of Human Resources of Ore. v Smith, 494 US 872 (1990), which held, they said, that the “Free Exercise Clause tolerates any rule that categorically prohibits or commands specified conduct so long as it does not target religious practice.” Commentary on Fulton is already extensive, as reflected in SCOTUSblog.com coverage. Family defenders with clients in same-sex relationships (or in unmarried relationships, which CSS also refused to certify), may want to familiarize themselves with Fulton even if local agencies do not currently have policies like CSS’s, as the decision may spark more. Advocates are citing Fulton in calls for federal legislation and regulation to protect for LGBTQ+ rights.

NYSDA is hiring a Staff Attorney for our Public Defense Backup Center. Details on the position and how to apply are available at https://www.nysda.org/page/NYSDAJobs. Applications will be accepted on a rolling basis.

We are pleased to announce that Natalie Brocklebank is NYSDA’s new Deputy Director. Natalie has been an integral member of our team since she joined the attorney team at the Association in December 2019. Her legal experience includes work as Assistant Counsel on the Statewide Team of the NYS Office of Indigent Legal Services, an Attorney and Investigation Supervisor at The Bronx Defenders, an attorney at the Public Defender Service for the District of Columbia, and a partnership lawyer on rotation to New Orleans, post Katrina. Congratulations, Natalie!

This year’s annual meeting and conference will be held virtually during the week of July 26th. 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. This year we will be offering a combined rate for those who join NYSDA: $175 for registration fees ($100) and attorney membership through Dec. 31, 2022 ($75).

For full program information and to register, go to https://www.nysda.org/page/NYSDA54thAnnualConference.

The combined criminal and family defense conference will include traditional presentations of New York Court of Appeals and US Supreme Court updates; and sessions ranging from Creative Antiracist Litigation Strategies in the Courtroom, Proactive Representation in Termination of Parental Rights (TPR) Cases, Strategies to Keep and Return Children Home in Family Court Article 10 Cases, and Challenging Forensic Evidence. Other sessions will address Diversity, Inclusion and Elimination of Bias and Ethics and Professionalism. The CLE sessions run from July 26th to July 29th The week’s programs will be presented by a diverse roster of speakers from around the state. We look forward to your participation in our Annual Meeting and Conference!

Our Annual Membership Meeting will be held on Wednesday morning, July 28, 9:00 - 9:40 am. Members are encouraged to join us to hear about the Association’s work over the past year and to elect members to our Board of Directors. Members will receive a notice of the membership meeting and the slate of Board candidates soon.

NYSDA will be hosting Chief Defender Convening on Friday, 7/30 from 9:30 am - 12:30 pm. For more information on the Convening, please contact Susan Bryant at [email protected].