Supreme Court Strikes Down Concealed Gun Law in New York
In New York State Rifle & Pistol Assn., Inc. v Bruen, the U.S. Supreme Court struck down New York’s concealed carry licensing law, Penal Law 400.00, as unconstitutionally restrictive. In its decision, the Court held, “In District of Columbia v. Heller, 554 U. S. 570 (2008), and McDonald v. Chicago, 561 U. S. 742 (2010), we recognized that the Second and Fourteenth Amendments protect the right of an ordinary, law-abiding citizen to possess a handgun in the home for self-defense. In this case, petitioners and respondents agree that ordinary, law-abiding citizens have a similar right to carry handguns publicly for their self-defense. We too agree, and now hold, consistent with Heller and McDonald, that the Second and Fourteenth Amendments protect an individual’s right to carry a handgun for self-defense outside the home.”
 
In order to justify a regulation of an individual’s Second and Fourteenth Amendment rights, “the government must demonstrate that the regulation is consistent with this Nation’s historical tradition of firearm regulation.” New York failed to establish that “there is any such historical tradition limiting public carry only to those law-abiding citizens who demonstrate a special need for self-defense.” [Footnote omitted.]
 
Based on this ruling, Penal Law 265.03(3) is facially unconstitutional. There are also good arguments that many PL 265.03(1)(b) charges should also be dismissed. 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.
 
New York Enacts New Legislation in Effort to Respond to Bruen, Challenges Expected
The day after Bruen was issued, Governor Hochul announced that she was calling the Legislature back for a special legislative session to address the decision. On July 1, 2022, the Legislature passed S51001/A41001 and the Governor signed the bill. L 2022, Chapter 371. The law amends and adds new provisions to Penal Law articles 265, 270, and 400 and other relevant sections of the Executive Law and General Business Law. The law includes a severability section (25) and section 26 sets the effective dates for each of the changes.
 
The law amends Penal Law 400.00 in several respects, including:
  • specifically defining “good moral character” as “having the essential character, temperament and judgment necessary to be entrusted with a weapon and to use it only in a manner that does not endanger oneself or others”
  • imposing an in-person live safety course and live-fire range training requirement (set forth in 400.00[19])
  • precluding licensing of individuals who have been convicted within five years of the application date of third-degree assault (PL 120.00), misdemeanor driving while intoxicated (VLT 1192), or menacing (Penal Law 120.15)
  • requiring that applicants meet in person with the licensing officer for an interview and provide names and contact information of partners and adult residents in the applicant’s home, at least four character references, and a list of current and former social media accounts from the past three years “to confirm the information regarding the applicants character and conduct”
  • establishing an appeals process for application and renewal denials, and revocation decisions, which will be heard by a board created by the Division of Criminal Justice Services and the State Police Superintendent, and authorizing representation by counsel (but not assignment of counsel).
 
The law creates two new class E felonies: criminal possession of a firearm, rifle or shotgun in a sensitive location (Penal Law 265.01-e) and criminal possession of a weapon in a restricted location (Penal Law 265.01-d). There are a total of 20 “sensitive” locations, including government buildings, health care facilities, places of worship, public parks, schools, shelters, public transportation and transportation facilities, and Times Square. Public sidewalks and other public areas are considered sensitive locations under certain circumstances. Restricted locations are private properties “where such person knows or reasonably should know that the owner or lessee of such property has not permitted such possession by clear and conspicuous signage indicating” that carrying a firearm, rifle, or shotgun on the property is permitted or has not given express consent.
 
The law amends the definitions of rifle and shotgun in Penal Law 265.00(11) and (12), and amends Penal Law 270.20, 270.21, and 270.22 by replacing all references to body vests with body armor and defining the term body armor.
 
Chapter 371 amends Penal Law 265.45 regarding the safe storage of rifles, shotguns, and firearms where someone under the age of 18 resides in their home and creates new rules regarding safe storage of such weapons in a vehicle.
 
Finally, section 228 of the Executive Law is added to name the State Police as the state point of contact for implementation of national instant criminal background checks, implementation of 18 USC 922(t), and all related federal regulations and guidelines, and to direct the State Police to create and maintain a statewide firearms license and records database.
 
The new law is likely to face challenges on a number of grounds, as discussed in news articles from CBS News, Reuters, and Spectrum News. Attorneys handling charges under the new legislation are encouraged to contact the Backup Center regarding possible constitutional challenges.
 
Prosecution Must Disclose Officers’ Misconduct Records in Certificate of Compliance
A Manhattan judge found a prosecutor’s Certificate of Compliance (COC) invalid and dismissed under CPL 30.30(1)(b) where the prosecution “declined to disclose underlying records related to substantiated and unsubstantiated misconduct for testifying officers, names and contact information for civilian outcry witnesses, and written statements by the complaining witness to those witnesses.”
 
In coming to its decision, the court found that “CPL 245.20 (1) (k) (iv) requires disclosure of records underlying substantiated and unsubstantiated disciplinary allegations of misconduct before a valid COC can be filed.” (Citations omitted). People v Martinez, 2022 NY Slip Op 50476(U). If you are contemplating a similar CPL 30.30 motion, please do not hesitate to contact the Backup Center for assistance.
 
CAL: Challenge “High Crime Neighborhood” Basis for Stops
The Center for Appellate Litigation (CAL) proposes challenging the assertion of “high crime neighborhood” as a justification for a police stop “absent empirical data to support the assertion and other evidentiary showings.” CAL’s June 2022 edition of Issues to Develop at Trial (IDT) says that because the neighborhoods in question “are often impoverished areas and communities of color, asserting presence in a high crime area as a justification for detention by law enforcement privileges only a certain race or class of people with Fourth Amendment protections and relegates others to second-class status in regard to the Fourth Amendment.” Included are tactics and authority to consider.
 
As always, NYSDA thanks CAL for making this and other resources available to the defense community. CAL’s website includes an IDT archive and a Court of Appeals Practice webpage.
 
Significant First Amendment Decision in Federal Challenge to NYS Prosecutorial Disciplinary Procedures
As discussed in the November 29, 2021, edition of News Picks, last year a group of law professors and the Civil Rights Corps filed a civil rights action in the Southern District of New York “challenging under the First Amendment the constitutionality of an obscure New York state regulation (Judiciary Law §90(10)) that arguably requires disciplinary complaints against attorneys to be kept secret unless a public sanction has been imposed, or the Appellate Division for ‘good cause’ authorizes disclosure.”
 
On June 13th, Southern District Judge Victor Marrero denied the City of New York’s motion to dismiss on qualified immunity grounds. The decision finds that “there is little merit in the argument that a state may prevent individuals who file attorney grievance complaints from publicly disclosing such complaints.” Finally, the decision states that “it is especially true that three high-ranking legal officers of the State and City of New York – the Corporation Counsel, the Queens County District Attorney, and the Chief Counsel to the Grievance Committee – would have known that, under the First Amendment, attorney grievance complainants are free to publicly publish their own complaints.”
 
NYSDA is continuing to track the case and will report updates in News Picks. The federal complaint can be found here.

Assigned Counsel Compensation Continues to Lag
As noted in the June 14th edition of News Picks, the assigned counsel compensation lawsuit brought by the New York County Lawyers Association, the Assigned Counsel Association, and other bar associations against New York City and the State is still in front of Supreme Court Justice Lisa Headley. The item said that the Attorney General’s office filed two letters with the court, one on June 6th and one on June 8th that included a letter from the Governor’s Counsel, Elizabeth Fine.
 
On June 13th, plaintiff’s counsel responded to the Governor’s Counsel letter: “Ms. Fine’s letter is more notable for what it does not say than for what it does. She provides no explanation for the utter inconsistency between the State’s repeated representations to this Court about resolving this lawsuit either through the budget signed on April 7, 2022 or thereafter, including representations in the sworn statement of the Budget Director, and the Governor’s statement to the press that the budget was not the appropriate place to resolve this. Nor does she explain the State’s failure to heed this Court’s request to include us in any negotiations, or to honor its promise to provide us with updates.” The letter goes on to say that, “the proposal in Ms. Fine’s letter for the relief this Court should now order is grossly inadequate,” and continues to press the court for a preliminary injunction.
 
On June 27th, New York City Assistant Corporation Counsel Jonathan Pines also responded to Governor’s Counsel’s letter, urging state support for the city’s suggested statutory changes and mandate that the state cover the increased rates. Pines writes that, “[I]ncreasing assigned counsel rates without a corresponding change to the State Finance Law would have drastic financial consequences for the City.”
 
Finally, Sarah Tirgary, president of the Assigned Counsel Association, published an op-ed in the New York Law Journal on June 27th arguing that the state’s continued reluctance to raise rates “has resulted in a steady deterioration of the indigent defense bar and attorneys for children.” Tirgary proposes as a solution to continuing state inaction that “[t]he county law needs to be amended as suggested by the New York state Senate and Assembly so that the state pays the bill and incorporates a mechanism in the statute that guarantees annual cost of living adjustments.”
 
NYSDA continues to advocate for an assigned counsel rate increase, the elimination of the per case compensation cap, the addition of an automatic cost of living increase, and the State payment of the increased rates.
 
Supreme Court Allows Resentencing Under First Step Act for Pro Se Individual
In another Supreme Court decision, Concepcion v United States, the Court ruled in favor of a pro se individual seeking relief under the First Step Act. The Court found the First Step Act, which says federal district courts may reduce previously imposed sentences for certain crack cocaine offenses, allows those courts to consider intervening changes of law or fact in exercising their discretion to reduce a sentence. News coverage in the ABA Journal and the Wall Street Journal.
 
June Sees Several Decisions from High Courts
Both the U.S. Supreme Court and the New York Court of Appeals issued June decisions of interest to public defenders. The descriptions below are intended only to flag some new decisions and do not include all points of law or separate opinions. NYSDA will work to analyze further the decisions and their impact on public defense matters. Many of these decisions will also be discussed during NYSDA’s 55th Annual Meeting and Conference. See below for more information.
 
Supreme Court Addresses a Range of Matters
In addition to the cases discussed above, the Supreme Court decided cases involving criminal prosecutions, child custody, and more in June. Issues ranged across double jeopardy in proceedings in Indian country, an international Convention, constitutional questions, and others. Most notably, the June 24th overruling of Roe v Wade in Dobbs v Jackson Women’s Health Organization has wide-ranging ramifications. As the National Legal Aid and Defender Association stated, “[t]his decision indicates a willingness to revisit longstanding fundamental rights that historically protected low-income and minority communities in this country.”
 
In United States v Taylor, the Supreme Court answered no to the question, “[d]oes attempted Hobbs Act robbery qualify as a ‘crime of violence’ under 18 U. S. C. § 924(c)(3)(A)” under which the defendant would “face a second felony conviction and years or decades of further imprisonment?” The case involved the “categorical approach,” under which “[t]he only relevant question is whether the federal felony at issue always requires the government to prove—beyond a reasonable doubt, as an element of its case—the use, attempted use, or threatened use of force.” The decision has ramifications beyond the Hobbs Act. “This Court has long understood similarly worded statutes to demand similarly categorical inquiries,” the majority said. A post on the Law Professor Blogs Network noted, “[t]he decision has important implications not just in the context of criminal sentencing law, but also in immigration law where the categorical approach is applied.”
 
The Golan v Saada decision addressed the Hague Convention on the Civil Aspects of International Child Abduction. A Circuit Court requirement “mandating that district courts independently ‘examine the full range of options that might make possible the safe return of a child’ before denying return due to grave risk, even if the party petitioning for the child’s return has not identified or argued for imposition of ameliorative measures,” was found inconsistent with the Convention. According to a SCOTUSblog.com post, the case, which “gave federal trial courts more discretion over whether children in some international custody disputes must be returned to their home countries,” is “the latest in a series of cases interpreting” the Convention.
 
Other issues addressed in June cases include:
 
  • By its terms, the double jeopardy clause “prohibits separate prosecutions for the same offense; it does not bar successive prosecutions by the same sovereign.” At issue was prosecution of a member of the Navajo Nation for acts on the Ute reservation, first via a criminal complaint filed by an officer with the Bureau of Indian Affairs in a “CFR” court (established under what is now the Code of Federal Regulations) and then via grand jury indictment in federal district court. The initial charges were for offenses under the Ute Mountain Code and the CFR. The later charge was under the federal Major Crimes Act. (Denezpi v United States).
 
  • A judge’s errors of law can constitute “mistakes” under Federal Rule of Civil Procedure 60(b)(1), which allows a party in federal court to seek relief from a final judgment (Kemp v United States).
 
  • Use of an un-Mirandized statement in a trial that resulted in an acquittal did not provide a valid basis for a 42 USC 1983 constitutional tort claim (Vega v Tekoh).
 
 
Several rulings were issued in death penalty cases. They included Shoop v Twyford, in which Ohio successfully challenged a federal court order to transport the petitioner for medical testing to support a theory that he suffered from a head injury that “left him ‘unable to make rational and voluntary choices,’” a defense not raised at trial. The Supreme Court held that “[a] transportation order that allows a prisoner to search for new evidence is not ‘necessary or appropriate in aid of’ a federal court’s adjudication of a habeas corpus action, 28 U. S. C. §1651(a), when the prisoner has not shown that the desired evidence would be admissible in connection with a particular claim for relief.”
 
In Andrus v Texas, Justices Sotomayor, Breyer, and Kagan dissented from the denial of certiorari in a capital case. Justice Sotomayor’s long opinion said that the Texas Court of Criminal Appeals’ ruling on remand “that Andrus failed to establish prejudice (and therefore denied habeas relief) [was] based on its disagreement with, and rejection of, the determinations underlying this Court’s holding that Andrus’ counsel had rendered deficient performance” and “was irreconcilable with this Court’s prior decision and barred by vertical stare decisis and the law of the case.” She detailed the mitigating evidence and evidence rebutting the prosecution’s aggravators that trial counsel failed to explore.
 
In another denial of cert, the Court, according to a Death Penalty Information Center article, “summarily denied a petition for writ of certiorari filed on behalf of Florida death-row prisoner Joe Nixon, declining to review the state’s refusal to apply to his case a prior Supreme Court ruling that had struck down the criteria the Florida courts had used to deny his intellectual disability claim.” And in another case, Nance v Ward, the Court said that 42 USC 1983 remains a proper vehicle for condemned people to make a method-of-execution claim proposing an alternate method of execution, “even if the alternative route necessitates a change in state law.”
 
While New York has no enforceable state death penalty, people here may be charged federally with capital offenses, as discussed in the January-May issue of the Public Defense Backup Center REPORT. Furthermore, capital cases can shape legal authority in non-capital cases and affect policy more generally.
 
Court of Appeals Decisions
Recent cases from the Court of Appeals sparked no intense media coverage.
 
The Court unanimously reversed a ruling that had applied the amended language of CPL 30.30(1)(e) in a case that was pending on direct appeal in the Appellate Term at the time of the amendment. “The amendment requires application of CPL 30.30 (1) and its maximum times for prosecutorial readiness to accusatory instruments charging traffic infractions jointly with a felony, misdemeanor, or violation. However, the legislature has not mandated retroactive application of the newly worded CPL 30.30.” People v Galindo (6/16/2022).
 
A complaint that charged criminal possession of a controlled substance and said in the factual portion that the police officer averred based on training and experience that the substance seized “is alleged and believed to be synthetic cannabinoid/synthetic marijuana (K2),” but made no reference to the schedule of such drugs contained in Public Health Law 3306(g), “failed to allege a sufficient factual basis to conclude that the substance defendant possessed was illegal,” making the accusatory instrument facially deficient. People v Hill (6/16/2022).
 
Where a majority issued a three-sentence memorandum opinion affirming an Appellate Division rejection of a criminal defendant’s appeal, Judge Rivera wrote a lengthy dissent. The case involved a negotiated plea with a definite sentence, which the defendant served, but then he was held beyond the expiration of the imposed term because he was subject to the Sexual Assault Reform Act (SARA) and his proposed home upon release did not comply with SARA limitations. He was held at a “residential treatment facility” in a medium security prison for nine months after he should have been released under postrelease supervision. “Although defendant cannot get back the time lost during his confinement—his liberty was deprived and cannot be regained—action can be taken to mitigate some of the harm incurred due to the breach of the sentencing promise,” Rivera wrote; “the government should be held to its promises’ ….” People v Laboriel (6/14/2022).
 
Without providing facts in its memorandum opinion, the Court found that “[u]nder the unique circumstances presented, Supreme Court did not abuse its discretion in reserving decision on the People’s pre-trial Molineux application which sought to cross-examine defendant regarding the underlying facts of his prior gun-related convictions until after defendant’s testimony, at which time the court could determine whether, and to what extent, defendant opened the door to such inquiry,” and that any error was harmless. People v Huertas (6/14/2022).
 
Observing Juneteenth
Juneteenth is a time to celebrate the end of the institution of slavery. The legal history, like the continuing effects of slavery, is complicated—but the need to observe the milestone is simple. Juneteenth is about liberty for Black people. As Executive Director Susan C. Bryant said in announcing observance of Juneteenth to staff, it is an “opportunity to … celebrate freedom and the history, achievements, and perseverance of Black and African Americans and reflect on the ongoing, systemic racism and injustice in our society.” This year, NYSDA offices again closed for Juneteenth (on June 20th), but one activity did not pause. The week-long Basic Trial Skills Program (BTSP), a normally annual event, returned after a COVID-19 hiatus. BTSP emphasizes that quality representation includes an understanding of clients’ lives and circumstances; because many public defense clients have to deal with racism in their lives and in the legal system, teaching and learning about that was a fitting way to observe Juneteenth.
 
Across the country and state, public defenders, civil legal services lawyers, and others used the day to reflect and learn, as urged by the Charlotte Center for Legal Advocacy. The National Association for Public Defense issued a Juneteenth Statement of Power and Honor. Advocates for reform in the criminal legal system made Juneteenth a time to highlight the need for change. For example, see the Center for American Progress’ June 16th article and the Innocence Project’s June 17th post. And “freedom” encompasses a host of issues, not just freedom from forced labor and incarceration but also freedom from discrimination and marginalization. The NY Association on Independent Living announced, in recognition of Juneteenth, diversity, equity, and inclusion webinars on Disability Inclusion & Intersectionality (June 30th) and Sanction our Scars: A conversation on storytelling that centers those most impacted (July 13th). NYSDA hopes that the lawyers, other defense team members, and clients we serve had a positive Juneteenth experience!
 
“Safety in Forensic Science”
The above-named article from 82 Ohio State LJ Online (2021) “suggests that interdisciplinary thinking is needed to minimize false convictions based on flawed forensic science evidence,” likening false convictions to other system errors, such as plane crashes, which cause enormous damages and costs. The article “recommends applying the Systems-Theoretic Accident Model and Process (STAMP) safety model to forensic science evidence and using it in the criminal justice system in general.” Like many writings about science in the legal system, the article includes terminology that many lawyers may be unfamiliar with, including “STAMP” and what that refers to. Developed by Nancy G. Leveson, Professor of Aeronautics and Astronautics at MIT and co-founder of STAMP Safety and Security Consulting (S3C), STAMP is a system theory that can be used to understand accidents “in terms of why the controls that were in place did not prevent or detect maladaptive changes, that is, by identifying the safety constraints that were violated and determining why the controls were inadequate in enforcing them.”
 
Boaz Sangero, the law professor advocating application of STAMP to the criminal legal system, asserts that the system, and forensic science, “should be categorized as what is known in safety engineering [as] a ‘safety-critical system.’” [Footnote omitted.] Tables in the article list forensic science “hazards,” including misleading testimony by a forensic expert and the admission in court of flawed or misleading forensic evidence, and suggested constraints and controls for addressing them.
 
NYSDA’s new statewide Discovery and Forensic Support Unit, currently forming as noted in the last News Picks, will be examining forensic science developments and ways to advance quality representation in criminal and family court cases involving this critical field.

Association News


First 2022 Issue of the Backup Center REPORT is Posted
The January-May 2022 issue of NYSDA’s newsletter, the Public Defense Backup Center REPORT, has been posted 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.
 
Basic Trial Skills Program (BTSP) 2022
NYSDA held its Defender Institute Basic Trial Skills Program the week of June 19 – 24, after a two-year hiatus due to COVID, at Skidmore College in Saratoga Springs, NY. Twenty-one faculty members from around the country and 45 defender participants, some just recently sworn into the bar, overcame COVID constraints to gather for the residential, intensive, fully immersive trial training program. It was an exhausting week, much like trying a case in real time, but everyone came through successfully and energized to return to home jurisdictions with honed skills to put into practice.
 
Upcoming Training
 
Registration for NYSDA’s 55th Annual Meeting and Conference (July 24 - 26, 2022) closes TOMORROW, July 7th. In-person attendance at the Saratoga Hilton; online attendance via Zoom. For information about accommodations, the program agenda, and registration details, click here.
 
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, go to https://www.wyndhamhotels.com/trademark/syracuse-new-york/collegian-hotel/rooms-rates?&checkInDate=09/29/2022&checkOutDate=09/30/2022&groupCode=092922NYS
 
Questions? Please contact NYSDA’s Family Court Staff Attorney, Kim Bode, at kbode@nysda.org or training@nysda.org.