Latest Issue of the Center for Appellate Litigation’s Issues to Develop at Trial- Racial Justice Series
The Center for Appellate Litigation (CAL) has released its July 2021 installment of Issues to Develop at Trial- Racial Justice Series. The featured topic this month relates to challenging pre-textual traffic stops in hopes of modifying, if not overturning, the Robinson/Whren precedent that makes irrelevant a police officer’s underlying subjective intent in initiating a vehicle stop as long as a so-called objective basis can be shown in the manner of a traffic stop, including alleging a failure to properly signal before making a lane change or an arguably non-essential equipment violation such as a faulty lamp.
 
In this issue, the CAL discusses the result and rationale of People v Robinson, 97 N.Y.2d 341 (2001) [citing Whren v. United States, 517 U.S. 806 (1996)], and goes on to suggest challenges to be put on the record to begin a coordinated defense practice path to fixing this terrible decision. They outline a foundation for three avenues of attack: Challenge #1 - Robinson should be overruled; Challenge #2 - Robinson does not apply to mistake-of-law stops; and Challenge #3 - Racist Traffic Stops Violate Equal Protection and Require Dismissal of the Charges or Suppression of the Evidence (or a hearing at a minimum).
 
The issue lays the groundwork for a bold movement to help deconstruct racist police action that fuels mass incarceration and the subjugation of our communities of color. As stated in the issue’s introduction: “Even if your challenges are unsuccessful, you’ll be making a strong statement on your client’s behalf, make the prosecution’s life just that much more difficult, and set the stage for further litigation that your appellate colleagues would relish pursuing.”
 
Read the issue here and be sure to register for NYSDA’s upcoming Annual Conference, where CAL staff will be giving a presentation on Monday, July 26, on Creative Antiracist Litigation Strategies in the Courtroom. For more information on that session and the conference as a whole, go to https://www.nysda.org/page/NYSDA54thAnnualConference. Today is the last day to register for the Conference.
 
TU’s Churchill Takes on Soares Over Bail Reform and Violence
The Times Union’s Chris Churchill wrote a recent column calling out Albany County District Attorney David Soares’ claims that rising gun violence should be blamed on New York’s liberalized bail laws. The column’s point can be summed up as, “where’s the proof?” Churchill challenges Soares’ “hodgepodge of statistics,” and says that “the most accurate conclusion from the data, I think, is that the violent crime spike is a national phenomenon with local variations, suggesting a problem vastly more complex than one state’s experiment with bail reform.” Soares, Churchill adds, had failed to provide requested examples of instances in which any Albany killings or shootings were directly tied to bail reform.
 
While Churchill’s refutation of empty rhetoric is commendable, he comes close to endorsing calls for judges “to have more discretion to keep potentially violent defendants in jail.” Having said earlier in the column that “clearly a bail system that violated so many of our legal principles -- due process, equal protection, innocent until proven guilty -- needed to change,” he fails to note that pretrial detention based on perceived dangerousness also guts the presumption of innocence. Advocates for maintaining bail reform must continue to educate the press and the public and encourage lawmakers to stand firm.
 
Fact-Checking Claims About Bail Reform and Link to Violent Crime
CNN reported that “the increase in crime has occurred in cities across the country, not just those with bail reform measures. According to a report from the Major Cities Chiefs Association, out of the 66 largest police jurisdictions, 63 saw an increase in at least one category of violent crimes in 2020, CNN reported.” As the article noted: “There’s no clear evidence linking bail reforms – which have been in place for years in some cities – to the recent rise in violent crime. In fact, the majority of cities that have seen increases in crime have not eliminated cash bail.”
 
“Rolling back bail reform would be a mistake”
Monroe County Public Defender Tim Donaher authored the above-titled Opinion piece published in the Rochester Beacon last month. In it, he explained, “Bail reform has been a huge success. Statewide, pretrial detention has decreased 35 percent. Right now, 5,000 New York citizens are free instead of being incarcerated awaiting trial thanks to bail reform. Instead of celebrating this, some in our community have engaged in a concerted effort to roll back reform, arguing that there has been an increase in violent crime, and bail reform is the cause. But the reality is much more nuanced.” The article ends with this reminder: “When considering the impact of bail reform, think about the 5,000 people who, at this moment, are not suffering in jail awaiting trial. Do not let misinformation return us to a system where thousands of New York citizens were detained pretrial on minor crimes. We should be proud of the reforms and their success in ending an unfair process that incarcerated people because they were poor.”
 
OCA Releases Data on Pretrial Release and Detention
The Division of Technology & Court Research (DoTCR) has released the first pretrial release data since the passage of bail reform, as required Judiciary Law 216(5) and Executive Law 837-u. In addition to the legally required information, DoTCR added additional fields “to make it more robust for researchers studying the bail reforms from the 2019 Criminal Justice Legislation.” The data extract “contains statewide criminal arraignments from January 1st, 2020 to December 31st, 2020 and will be refreshed every six months to add cases and to update information from prior extracts. Each row contains a defendant-docket arraigned with a top arraignment charge of felony or misdemeanor. Information on case location, intake process, representation type, release decisions, top charge, demographics, case status, disposition, and prior arrest & rearrest (provided by DCJS) are included.” For anyone who downloaded the data file before July 21st, you should return to the website and download the updated file, which fixed a calculation error in the “Days_Arraign_Remand_First_Released” field.
 
Second Department Orders Release of Petitioner Held for 730 Exam
As noted in the June 28, 2021, edition of the Onondaga County Assigned Counsel Plan’s newsletter, the Second Department held, in People ex rel Molinaro v Warden, that “the criminal court lacked the authority under CPL 730.20 to remand Wei Li, who otherwise was entitled to release, pending a CPL article 730 examination.” This is welcome news; contrast it to the holding in a habeas case from Kings County last year, in which a Supreme Court judge considered “whether the provisions of CPL 530.20 and 180.80 apply in the context of a defendant who may be an incapacitated person” remanded for a 730 exam and said, “unless and until the legislature makes clear its intent to circumscribe judges’ discretion to remand or confine potentially incapacitated persons, courts may exercise their sound discretion to determine whether such persons should be confined or be at liberty pending determinations of fitness.” People v Suero, 67 Misc 3d 229 (Supreme Ct, Kings Co 1/28/2020).
 
ILS Releases Caseload Standards for Family Court Mandated Representation Cases
The New York State Indigent Legal Services (ILS) Office released the long-anticipated Caseload Standards for Parents’ Attorneys in New York State Family Court Mandated Representation Cases. As noted in the announcement of the standards, which were approved by the ILS Board on June 11, 2021, they “were developed in accordance with the recommendation of The Commission on Parental Legal Representation – Interim Report to Chief Judge DiFiore (February 2019) …. The Commission’s recommendation was informed in part by testimony from parents, attorneys, and judges, indicating that excessive caseloads prevent the delivery of effective parental representation.” While these standards are a big first step for assisting over-burdened and under-resourced providers of family court mandated representation manage their caseloads, it is not time to celebrate just yet. The announcement noted that approval of the standards “is contingent upon the availability of the State funding needed to implement the standards.” The announcement goes on to state: “The Family Court caseload standards build upon the criminal caseload standards ILS developed in 2016 pursuant to the Hurrell-Harring v New York State settlement. State funding is available to effectuate the criminal caseload standards, but not the parental representation standards. Yet representation in both realms is mandated by law, profoundly consequential for our clients and society, and plagued by racial and economic disparity.”
 
NYSDA strongly supports and encourages advocates to lobby their legislators for the state funding that lawyers (and CLIENTS) need now. The standards should not be shrugged off, set on a shelf, buried in computer files, or otherwise ignored while awaiting a miracle. State funding will only happen if advocates push hard for it; standards are a good “pushing" tool.
 
The standards include both maximum annual case assignment limits and a minimum average number of hours attorneys should spend on each case, based on the premise that the average attorney has 1,875 available work hours per year. This is the same premise used in the criminal caseload standards. The standards are broken down into thirteen case categories: paternity; willful violation of support; willful violation other; family offense; guardianship; violation of conditional surrender; adoption; modification of prior order; custody/visitation; conditional surrender; neglect; abuse; and TPRs (termination of parental rights). Maximum caseloads range from 33.3 for neglect, abuse, and TPRs respectively, to 300 cases per year for paternity proceedings. The full report can be found here.
 
Failure to Relieve Counsel Without Proper Notice to Party is Reversible Error
In Matter of Calvin L.W. (Dominique H.), 2021 NY Slip Op 04465 (4th Dept 7/16/2021), the court reminds us that an attorney can only withdraw from representing a client upon reasonable notice to the client and for good cause. In this case, the Fourth Department unanimously reversed a decision on default to terminate the mother’s parental rights “[b]ecause there is no indication in the record that the mother’s attorney informed her that he was seeking to withdraw as counsel, the court should not have relieved him as counsel (see Gonzalez, 177 AD3d at 1275; Matter of Menghi v Trotta-Menghi, 162 AD3d 771, 772 [2d Dept 2018]; cf. Matter of Patience T. [Christopher T.], 173 AD3d 1761, 1762 [4th Dept 2019]).”
 
It is good practice to avoid withdrawing from representation when at all possible, as it will likely be harmful to the client’s legal interests. This is especially true with clients who are facing the loss of their child, either permanently or temporarily, or their loss of liberty. Attorneys should be guided by The New York Rules of Professional Conduct, Rule 1.16, which provides that withdrawal should not have a material adverse effect on the interests of the client. The rule also states that, “even when withdrawal is otherwise permitted or required, upon termination of representation, a lawyer shall take steps, to the extent reasonably practicable, to avoid foreseeable prejudice to the rights of the client, including giving reasonable notice to the client .…”
 
Applications for Court of Appeals Seat Due August 6th
Lawyers who want to be considered for nomination to be a Court of Appeals Associate Justice, replacing Judge Eugene M. Fahey when he retires as required by reason of his age, face a deadline of August 6th. Applications can be downloaded from the NYS Commission on Judicial Nomination’s website: www.nysegov.com/cjn. Or, request an application from the Commission’s Counsel, Henry M. Greenberg, c/o Greenberg Traurig, LLP, 54 State Street, 6th Floor, Albany, NY; phone: 518-689-1400; fax: 518-689-1499; email: [email protected]. See the press release here.
 
As CUNY Law Professor Steve Zeidman wrote: “The urgent need for judges with professional and personal diversity has been raised at the federal level as advocates, and even Supreme Court justices and senators, have called on President Joe Biden to look beyond the usual crop of prosecutors and members of big law firms and appoint those who have spent their careers defending people from oppressive governmental power. Biden appears to be listening. His initial list of nominees for the federal bench includes several public defenders and civil rights attorneys. In contrast, Cuomo’s most recent nominees to the Court of Appeals have no experience challenging the carceral state.” Qualified defenders should consider applying.
 
Chief Judge DiFiore and OCA’s New Policy on Masks
Chief Judge DiFiore’s July 12, 2021, message discusses OCA’s latest policy on masks, which was “modified to permit fully vaccinated court visitors, who can show proof of their vaccination status, into our buildings, to enter and remain in our courthouses without a mask.” The new policy was covered in the New York Law Journal, “Under the updated policy, attorneys who are able to show proof of vaccination can receive a pass that allows them to go maskless inside a courthouse. It will also allow them to forgo a health safety screening. A coronavirus vaccination card, a picture of a vaccination card on a cellphone or vaccination Excelsior Pass will be accepted as proof of vaccination ….” A visual of the latest visitors’ sign can be viewed here.
 
As in-person appearances resume with fast changing policies rolling out, “public defenders across New York City called out the city for what they say are ‘deplorable’ conditions,” as reported by the Queens Daily Eagle. The New York Daily News also reported on horrible conditions in the courthouses, particularly where attorneys and clients meet: “behind the scenes in one of the city’s busiest court parts — AR1, in Manhattan — moldy chairs, dirt-splattered walls, and air intake vents black with soot are the norm in a meeting room where those arrested see and speak with their lawyers for the first time.” Defense attorney Julie Sender was interviewed and said: “I’ve been there 20 years .… [T]hose stains have been there for as long as I can remember.”
 
Meanwhile, a subsequent article in the New York Daily News reported: “Mayor de Blasio wrongly says NYC not responsible for filthy conditions in courthouses.” The article discusses his response when confronted with the conditions, pointing blame elsewhere, to OCA and the state. Also discussed was the inspection conducted last fall. “The holding cells behind the attorney-client meeting rooms were excluded in September 2020 when DCAS [Department of Citywide Administrative Services] upgraded ventilation facilities in the courtrooms, The News reported in March. The agency’s commissioner, Lisette Camilo, explained DCAS doesn’t have jurisdiction over the cells for security reasons.” Tina Luongo of the Legal Aid Society was interviewed in response. “Our clients are humans .…They are often detained for hours upon hours upon hours. They are members of our community. I can’t imagine that they can’t figure out between four, large, exceedingly well-funded city agencies how to work together to move people in order to open up a cell, clean it, make repairs, and make it habitable.”
 
First Department Appellate Division to Resume In Person Oral Arguments Fall 2021
As reported in the New York Law Journal, the First Department has announced it will resume its traditional three-day-a-week slate of in-person oral arguments beginning with the September 2021 term.
 
Public Comment Sought on Unconscious Bias Revisions to Criminal Jury Instructions
The Criminal Jury Instruction & Model Colloquies Committee, co-chaired by Hon. William C. Donnino and Hon. Patricia D. Marks, seeks public comment on the revised jury instructions related to unconscious bias. Those revised instructions can be viewed here. Persons wishing to comment on the proposed instructions should email their submissions to [email protected] or write to: Shane Hegarty, Esq., Assistant Deputy Counsel, Office of Court Administration, 25 Beaver Street, 11th Fl., New York, New York, 10004. Comments must be received no later than Monday, Aug. 30, 2021.
 
Appeals Court Grants Resentencing under the DVSJA
Applying the Domestic Violence Survivors Justice Act (DVSJA), the Second Department has reduced the sentence of Nicole Addimando, who had been convicted of killing her abusive partner. The July 14th decision explains: “[t]he language of the DV Survivor’s Act clearly and unambiguously sets forth three factors for a court to consider, namely: (1) whether the defendant was a victim of domestic violence inflicted by a member of the same family or household; (2) whether the abuse was a significant contributing factor to the defendant’s criminal behavior; and (3) whether, having regard for the nature and circumstances of the crime and the history, character, and condition of the defendant, a sentence in accordance with the customary statutory sentencing guidelines would be unduly harsh.” The court “appl[ied] the preponderance of the evidence standard to [its] review and analysis herein.”
 
The court rejected the lower court’s “methodology, approach, application, and analysis of the three factors, as set forth under Penal Law § 60.12(1).” The Second Department reduced the second-degree murder sentence to 7½ years in prison with five years’ post-release supervision and the second-degree criminal possession of a weapon sentence, which runs concurrently, to 3½ years.
 
The Poughkeepsie Journal reported on the case, referencing the court’s statement on the intention of the law, which “‘was passed in recognition that less harsh sentences may be imposed in certain appropriate cases involving domestic violence survivors. We are persuaded that the instant case is such an appropriate case.’”
 
NYSDA has a resource page on the DVSJA to assist attorneys. With the support of the DVSJA Statewide Task Force and Brooklyn Law School’s Survivor Justice Project, NYSDA is providing direct support services for attorneys working on DVSJA cases. Please contact Stephanie Batcheller at [email protected].
 
July is BIPOC Mental Health Month
An e-flyer recently received from the Mental Health Association of New York State’s School Mental Health Resource and Training Center reminds us that “July is Black, Indigenous, and People of Color (BIPOC) Mental Health Month.” While not directly aimed at those who work or have been ensnared in the legal system, the flyer and links within it provide a reminder that a “one mental health system fits all” approach does not reach everyone. One article from last year highlights “Top 7 Social Emotional Learning Programs for Youth of Color.” Other resources listed include We R Native information on building mental resilience, BEAM (Black Emotional and Mental Health) toolkits, and a Work2BeWell module on Structural Racism & Intergenerational Trauma.  


Association News

Today’s the Last Day to Register Next Week’s 54th Annual Meeting and Conference
Register today at https://www.nysda.org/page/NYSDA54thAnnualConference.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 are offering a combined rate for those who join NYSDA: $175 for registration fees ($100) and attorney membership through Dec. 31, 2022 ($75).
 
We look forward to your participation in our Annual Meeting and Conference!
 
Annual Membership Meeting, July 28th at 9:00 am
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 have already received a notice of the membership meeting this week along with the slate of Board candidates and the full meeting program will be sent to members soon.
 
Chief Defender Convening, July 30th at 9:30 am
NYSDA will be hosting a 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].
 
NYSDA is Hiring! NYSDA is hiring for two attorney positions- details can be found at NYSDA Jobs - New York State Defenders Association.
 
Save the Date
 
Friday, August 27, 2021: 5th Annual DWI Masterclass: Drug Edition: 
The Ontario County Public Defender’s Office, in conjunction with the National College of DUI Defense and NYSDA will present their 5th Annual DWI Masterclass at Finger Lakes Community College. This all-day training will be free to public defender and 18-b attorneys and offer 7 CLE credits. This year’s focus will be on recent developments in New York’s laws as they pertain to DWAI cases including: alleged cannabis impairment and toxicology, officer disciplinary records, body worn camera evidence, and more!
 
Friday, September 17, 2021: The Nuts and Bolts of Litigating Family Court Custody Cases 
This all-day training focused on family court custody cases will be $25 and offer up to 6.5 CLE credits. The program will cover topics including venue and jurisdiction; best interests; relocation; changing custody orders through litigation; extraordinary circumstances (non-parent custody and visitation); the role orders of protection, Article 10 proceedings, and indicated CPS reports play in custody determinations. The presenters are Jessica Anderson, Adele Fine, Mark Funk, Elizabeth Hendy, Rhian Jones, Amanda McHenry, Seana Sartori, Lisa Schoenfeld, and Tara Trammell. Registration information will be available very soon.