CAL Shares “Issues to Develop at Trial” Post-Bruen
As covered in the July 6th edition of News Picks, the Supreme Court’s decision in Bruen creates a number of potential constitutional defenses and avenues for dismissal for clients. The Center for Appellate Litigation (CAL) has now created a Bruen-specific “Issues to Develop at Trial” that includes a model affirmation, a motion to dismiss, a motion to withdraw a plea, a motion to challenge a “violent” sentencing classification, and an affirmation of service on the Attorney General’s office. The focus is on Penal Law 265.03(3), but includes sample language that should be applicable to most firearm offenses.
 
If you have a client that has recently taken a gun possession plea or have a client currently facing gun possession charges, please contact Staff Attorney Max Kampfner at the Backup Center at mkampfner@nysda.org for information on motions to dismiss and motions to withdraw pleas. Also, if you have a motion to share or information on developments in pending cases, please contact us.
 
CAL’s Latest “Court of Appeals Update” Available
Every two months, CAL produces a list of significant criminal cases pending in the New York Court of Appeals, noting the issues presented. The issues and cases noted in the July issue include: propriety of bringing back an alternate juror (People v Hasahn D. Murray, to be argued 9/7/2022); pre-indictment delay that prevented concurrent sentences (People v Ronald K. Johnson, to be argued 9/8/2022); application of the Rape Shield Law (People v Sergio Cerda, argument not yet set); and a variety of search issues, including some in cases with other issues noted here. Some form of right to counsel/effective representation issues is included in People v Tramel Cuencas (to be argued 9/14/2022); People v Donnell Baines (to be argued 9/13/2022); and People v Harold Tindal (argument not yet set). Other cases are included in the Update as well.
 
As always, NYSDA thanks CAL for sharing these resources and others.
 
Three Departments Release 380.55 “Continued Indigency” Forms
As noted in NYSDA’s September-December 2021 issue of the Public Defense Backup Center Report, CPL 380.55 was amended in January to direct appellate courts to presume the financial eligibility of defendants appealing their criminal cases if they had been represented by a public defender at the trial level and that defender provides sworn representation their client remains eligible.
 
Three judicial departments have now created 380.55 forms for trial counsel – the First, the Second, and the Third. We encourage public defense attorneys to complete the applicable certification form and submit it with a copy of the Notice of Appeal as a matter of course. The process is similar to the one that has existed for some time for family court appeals.
 
Bronx Dismissal for Deficient Certificate of Compliance
A Bronx Criminal Court judge has ruled that the prosecution “did not meet their statutory duty to serve automatic discovery and file a certificate of compliance within 35 days of arraignments. Instead, without permission from any court, the People violated that deadline more than twice over. Then, a mere three days away from the speedy-trial deadline for the entire case, the People filed a ‘certificate’ of discovery ‘compliance’ and stated ‘ready for trial.’” People v Vargas, 2022 NY Slip Op 50651(U).
 
The Court also found the prosecution “continued to disclose discovery files for months after their certificate and months after what would have been the speedy-trial deadline.” It said, “[t]his practice violated the discovery statute. A certificate of compliance must genuinely certify compliance. It cannot be a certificate of compliance in name only. Nor can it be a simple placeholder that the People file while they continue to disclose discovery files piecemeal, far beyond the speedy-trial deadline.”
 
NYSBA Ethics Opinions on Duty to Protect Client Information and Conflicts of Interest
NYSBA Ethics Opinion 1240 addresses whether an attorney whose smartphone includes contact information for current or former clients “whose identity or other information is confidential” can consent to “share” their contacts with an app on their phone. Applying Rule 1.6(c) of the Rules of Professional Conduct, which requires “a lawyer [to] make reasonable efforts to prevent the inadvertent or unauthorized disclosure or use of, or unauthorized access to [protected information],” the committee found that an attorney may not consent to share contacts with a smartphone app. Reasonable efforts to prevent unauthorized access to client names on a smartphone is analogized to paper copies in a filing cabinet or online storage of client files.
 
NYSBA Ethics Opinion 1243 analyzes whether a part-time public defender can practice in a court where their cousin and law partner serves as a part-time town court judge. Applying Rule 8.4(f) and Judiciary Law 471, the committee found that the part-time public defender cannot appear in that same court, but that that prohibition cannot be imputed to the other attorneys in the public defender’s office. It is the law partner status, not kinship, that underlies the finding.
 
ICE Issues Updated Directive Aimed at a More Humane System for Noncitizen Families
On July 14th, U.S. Immigration and Customs Enforcement (ICE) issued a press release announcing ICE Directive 11064.3, Interests of Noncitizen Parents and Legal Guardians of Minor Children or Incapacitated Adults, “[a]s part of continuing efforts to build a more fair, orderly, and humane immigration system.” This update to the Trump Era policy that resulted in devastating deportation and family separation will focus on new procedures and policies aimed at access to family visitation and child welfare services regardless of immigration status. ICE Acting Director Tae D. Johnson stated in part, “ICE will ensure that our civil immigration enforcement activities do not unnecessarily disrupt or infringe upon the parental or guardianship rights of noncitizen parents or legal guardians of minor children or incapacitated adults.” The changes include but are not limited to:
  1. Developing a new training program on safeguarding the parental or guardianship rights of noncitizens encountered by ICE officials while executing their duties.
  2. Ensuring that ICE has procedures to affirmatively identify noncitizens who are parents or legal guardians of minor children or incapacitated adults.
 
Advocacy Organizations Ask U.N. to Hold U.S Accountable for Racism in Child Welfare System
A recent report issued by Children’s Rights and the Human Rights Institute at Columbia Law School, and signed by 25 advocacy organizations, asks the United Nations to hold the United States accountable for what it calls a failure to address long-standing racial discrimination in the child welfare system, in violation of Article II of the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD). The introduction to the report states in part that, “[t]he child welfare system has had a devastating and disparate impact on Black families. Entry into this system, which licenses and mandates the surveillance, regulation, control, and separation of families through federal and state law, causes profound trauma to Black children and their families that has life-long impacts. While discriminatory and disproportionate harms caused by the child welfare system have also deeply impacted other communities of color, including Indigenous communities, this report focuses on the experiences of Black communities, which to date have not been reviewed by the Committee .…”
 
The report is submitted ahead of an August meeting in Geneva of the United Nations Committee on the Elimination of Racial Discrimination (CERD), in which a number of advocates are sure to attend to have their voices heard. According to the press release from Children’s Rights, one advocate who will be in Geneva is Joyce McMillan, child welfare advocate and executive director of JMac For Families. She said, “‘[n]o matter how well-intentioned, Black people experience the child welfare system as a continued form of slavery, as it separates us from our family and family history for generations; and causes immeasurable stress and trauma. I am going to Geneva because I am utilizing the pain that my family and I endured 23 years ago so that others do not have to experience the long, drawn out pain that I continue to live with. The state-sanctioned harm that Black families suffer via the United States child welfare system must end.’”
 
Among the topics addressed in the report are the disproportionate representation of Black children in the system; laws and policies that penalize poverty; expansion of discriminatory surveillance and policing of Black families; and long-term trauma stemming from removal & system Involvement, as well as a recommendation to repeal the Adoption and Safe Families Act.
 
Chief Judge DiFiore Stepping Down in August
Last week, Chief Judge DiFiore announced that she is stepping down from her position at the end of August. The following day, Law360.com reported: “The New York State Commission on Judicial Conduct has been investigating Judge DiFiore for allegedly interfering in the disciplinary hearing of Dennis Quirk, who is the president of the New York State Court Officers Association and a frequent critic of the chief judge.”
 
In light of the announcement, Jeffrey Deskovic, founder of The Jeffrey Deskovic Foundation for Justice, wrote an Opinion reflecting on DiFiore’s legacy as a prosecutor and a Court of Appeals judge, identifying opportunities she had to address failures in the justice system, such as wrongful convictions like his own, and concluding that, “by virtue of her inaction, she squandered seldom obtained opportunities to infuse the justice system with justice.”
 
Now that New Yorkers are left watching the process for her replacement unfold, there are news reports covering suggestions and opinions on who the replacement should be.
NYSDA stands ready to advocate for the larger public defense community to have a voice.  
 
New York City Office of the City Medical Examiner to Create DNA Gun Crimes Unit
According to this article in NY1, OCME is in the process of hiring 24 new forensic scientists to staff a new “DNA Gun Crimes Unit.” Mayor Adams said that the goal of the unit is to lower test times from 60 to 30 days.
 
Chief medical examiner Dr. Jason Graham suggested that “[a]ccelerated results will help the criminal justice system resolve cases as quickly as possible. These proceedings can result in the exoneration of someone who is innocent, or the conviction of someone who is guilty.” Deputy Mayor Phillip Banks however claimed that City Hall “discovered that many of the cases that were bottlenecked in the court system had to do with DNA testing” and that the lag in testing was “allowing these dangerous people to stay on the street, and so our goal was to say, ‘Let’s get this testing done.’”
 
BIPOC Mental Health Month Highlights Need for, Disparities in, Care
July is BIPOC [Black, Indigenous, and people of color] Mental Health Month. The observance is formally recognized as Bebe Moore Campbell National Minority Mental Health Awareness Month, created in 2008, as noted by the Jefferson Center. The Center sought to explain BIPOC “mental health, the factors that make it difficult for underserved communities to receive care, and what mental health care providers can do to overcome accessibility disparities.” Forbes carried an article, “Real Talk With Racial Justice Org Color Of Change About Black Life Portrayal On Screen” that focused on crime shows, noting “[t]he content we consume can affect our mental wellbeing.” NAMI [National Alliance on Mental Illness]—New York State, posted a BIPOC Mental Health Awareness Month Guide. Mental Health America made a toolkit available. NYSDA noted the July observance in News Picks last year, and includes information about Racism and Health (Physical & Mental) on its Racial Justice and Equity webpage; please submit helpful resources to info@nysda.org.


Association News


NYSDA to Honor Murphy, McEvilley in Saratoga
NYSDA will present two awards during its 55th Annual Meeting and Conference. Lorraine McEvilley, Director of The Parole Revocation Defense Unit [PRDU] at The Legal Aid Society (LAS), Criminal Defense Practice, in New York City will receive the Jonathan E. Gradess Service of Justice Award. Timothy P. Murphy, Assistant Federal Public Defender – Appellate Unit at the Federal Public Defender’s Office for the Western District of NY, will receive the Wilfred R. O’Connor Award.
 
Lorraine has worked tirelessly to bring justice to people under parole supervision. Beyond her important work at LAS, she has shared her expertise through training presentations such as Less is More Review and Practice at NYSDA’s 2021 Criminal & Family Defense Update last November and as one of the presenters at our Spring training program, A Whole New World of Parole Revocation. Congratulations, Lorraine! Your commitment to ensuring comprehensive implementation of the parole reform law, including its intent and spirit, and your other work have earned you this award, named for NYSDA’s former Executive Director, that commends individuals or organizations that have provided outstanding support to public defense and to NYSDA.
 
Tim has for many years provided stellar training for NYSDA (he will be presenting on New Developments in Criminal Law and Procedure at this conference), continuing to do so after moving from his post as Chief Attorney for the Appeals and Post-Conviction Unit of the Legal Aid Bureau of Buffalo, Inc. to the federal realm. He also routinely shares with state public defense lawyers his criminal case summaries from the NY Court of Appeals. Details about Tim’s contributions will be discussed on Monday. Congratulations, Tim, your work makes you a fitting recipient of the award named for a founding member of the Association who was its President for over a decade and who believed that every defendant, regardless of race, color, creed, or economic status, deserves a day in court and zealous client-centered representation.
 
Also, as in the past, the Genesee County Public Defender Office will present its Kevin M. Andersen Memorial Award during NYSDA’s Award Banquet. The Award was established by the Public Defender’s Office to remember and honor Kevin’s dedication to the public defense system and his compassion for his clients. This year’s recipient is Jonathan Rothermel, Senior Assistant Public Defender in the Broome County Public Defender’s Office. Congratulations, Jon!

Friday, August 19, 2022: 6th Annual DWI Master Class: Drug Edition: The DWAI Drugs Trial in 2022
Co-sponsored by the National College for DUI Defense and the Ontario County Defender’s Office, this full-day hybrid program will be held live at the Finger Lakes Community College in Canandaigua, NY, and available for virtual attendance via Zoom. Full Program details and registration information coming soon.

Friday, September 30, 2022: Stepping It Up: Strategies for Successful Family Defense
This all-day family defense training program will focus on various aspects of family court parental representation, including cross examination skills, how to conduct a permanency planning hearing, the effects of marijuana legalization on family court practice, and best practices for representing clients who are not present in court. The full agenda and registration will be available soon. This program will be available in person and online.
 
Hotel accommodations for September 29th: A special rate of $129 is available at the Collegian Hotel & Suites, Trademark Collection by Wyndham, which is a mile from the College of Law. To book a room, click here.
 
Questions? Please contact NYSDA’s Family Court Staff Attorney, Kim Bode, at kbode@nysdba.org or training@nysda.org.