Updated Materials on Discovery Reform Available
In a follow up to our News Picks from NYSDA Staff on April 13th, the materials previously shared by The Legal Aid Society have been updated as of June 2022. The Practice Advisory on Discovery and “Kalief’s Law” and the CPL 245 “Discovery” – Issues and Advocacy Plus CPL 30.30 “Speedy Trial” and 50-a Reforms can be found on NYSDA’s Discovery Reform page.
 
NYSDA Family Defense Resources Page has Discovery Motion Templates
Although not as notorious as criminal court discovery, family court discovery is essential for providing zealous representation to a client. Your professional obligation is to use this tool to gain the necessary information to enhance your clients’ chances of winning their cases. And, while potentially time intensive, it is well worth the effort. CPLR 408 governs discovery in special proceedings and requires leave of court for any disclosure. Before doing anything, it is best practice to familiarize yourself with the following discovery-related statutes: FCA 1038, FCA 1038-A, CPLR 3101, CPLR 3102, and CPLR 3120. Relevant cases include Matter of Stephen KK. v Kristina KK (69 Misc 3d 186 [2020]), and Matter of Ameillia RR (112 AD3d 1083 [3rd Dept 2013]). Sample discovery templates can be found on NYSDA’s Family Defense Resources page. Those with specific questions should reach out to NYSDA’s Family Court Staff Attorney, Kim Bode, at kbode@nysda.org.
 
First Department Finds Penal Law 222.05(3) Is Not “Retroactive”
In People v Salley, the First Department found that a 2018 search and arrest based on the odor of marijuana was justified, even though under subsequently enacted Penal Law 222.05(3), the stop would not meet probable cause. 2022 NY Slip Op 03481 (1st Dept 5/31/2022). However, while Salley does not find 222.05(3) to be totally retroactive, it leaves room for the argument that it does apply as a rule of evidence “retroactively” to a case where the suppression hearing occurs post-enactment, even if the arrest preceded enactment. Or put another way, it is the law at the time of the suppression hearing, not a statute’s retroactivity or non-retroactivity, that should be the focus.
 
Bronx County Case Dismissed, DA Ignored Court’s Motions Schedule
Covered in the New York Law Journal, Criminal Court Judge Zimmerman said in People v Beshiri, “[s]adly, it is not uncommon in the Bronx for lawyers to ignore motion schedules .… This is not too much to ask; filing papers when they are due, absent permission from the Court, should be table stakes.” He further explained in his decision how he calculated chargeable time to the prosecution, “[t]herefore, the 29-day period from when the People’s response was due, until the date on which they ultimately requested an extension from the Court (after being contacted by the Court) is chargeable to the People (see People v Gonzalez, 266 AD2d 562, 563 [2d Dept 1999] (delay in filing response to an omnibus motion ‘is properly charged to the People, since it constitutes a period of unreasonable delay in excess of the appropriate deadline to respond which was previously set by the court’); People v. Commack, 194 AD2d 619, 620 [2d Dept. 1993] (ten days properly charged to the People when they failed to respond to defendant’s speedy trial motion until ten days after the court-ordered deadline).”
 
State Fails to Increase Assigned Counsel Compensation; Crisis Continues to Worsen
As noted in the April 13th edition of News Picks, the State Budget negotiated by the Governor and the Legislature failed to include an increase in assigned counsel compensation. On April 21st, Supreme Court Justice Lisa Headley heard oral argument on the plaintiff’s motion for a preliminary injunction in the pending assigned counsel compensation lawsuit brought by the New York County Lawyers Association, the Assigned Counsel Association, and other bar associations against New York State and New York City. During the hearing, the attorneys for the State represented that the Governor and the Legislature were having discussions about assigned counsel compensation and requested one to two weeks to continue the discussions. The court reserved decision after the argument. More than a month later, the legislative session ended without a resolution to the worsening assigned counsel crisis.
 
On June 6, 2022, the plaintiffs’ counsel advised the court of the failure of the State to take action and urged the court to rule on the motion for a preliminary injunction. In response, New York City submitted a letter to the court noting its position that the matter is one for the Executive and Legislative branches, but that should the court disagree, the additional costs resulting from any relief be borne by the State. 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, which stated that the Governor “supports a resolution in this case that would double the current rates and caps … and a triennial review by the Director of the Division of the Budget to determine if further rate increases are warranted.” The letter went on to say that “[t]he Governor is prepared for the State to pay its portion of the increase in rates,” but is unaware of a mechanism that would allow the Court to “require the State to pay the share for New York City or for an increase in rates imposed on counties around the state, which are not party to this litigation.” It is unclear whether the court will issue a ruling now that the legislative session is over.
 
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.
 
Public Comment Sought on Proposed Amendment for Uniform Standards of Eligibility in Family Court
In 2019, “[t]he Commission [on Parental Legal Representation], chaired by former Presiding Justice Karen Peters, proposed in its February 2019 Interim Report to Chief Judge Janet DiFiore [citation omitted] that uniform standards of eligibility in Family Court proceedings be developed and implemented.” Three years later, the Administrative Board of the New York State Unified Court System is seeking public comment on a proposal that would implement eligibility standards for assigned counsel that would apply in all family court proceedings. This proposal would create a new section 205.19 of the Uniform Rules of the Family Court and provides in part that:
 
1)   “A person entitled to publicly funded counsel pursuant to [FCA 262, SCPA 407, or Judiciary Law 35(8)] shall be financially eligible for counsel when the person’s current available resources are insufficient to pay for a qualified private attorney, the expenses necessary for effective representation, and the reasonable living expenses of the person and any dependents.”
 
2)   “Counsel shall be provided at the first court appearance or immediately following the request for counsel, whichever is earlier. Eligibility determinations shall be made in a timely fashion so that representation by counsel is not delayed.”
 
3)   “A parent or legally responsible person, as defined by law, shall be entitled to and provided with immediate representation by counsel: (i) upon the filing of a petition or pre-petition request under Article 10 of the Family Court Act for an order for immediate removal of a child or temporary order of protection; (ii) where the court has received notice of an extra-judicial emergency removal of a child; or (iii) upon the filing of a petition alleging abuse or neglect against the parent or person legally responsible. In accordance with this entitlement, counsel shall be provided sufficiently in advance of the person’s first court appearance and shall also be provided for parents during a child protective agency investigation ….”
 
4)   A presumption of eligibility when the person’s net income is at or below 250% of the Federal Poverty Guidelines; the person is incarcerated, detained, or confined to a mental health institution, or is currently receiving, or has recently been deemed eligible pending receipt of, need-based public assistance, or within the past six months, has been deemed financially eligible for counsel in another court proceeding in that jurisdiction or another jurisdiction.
 
5)   A determination denying counsel by the court or delegated screening entity shall be in writing, shall include reasons for the denial and procedure for seeking reconsideration, and shall be provided to the person seeking counsel.
 
The request for public comment can be found here. Those wishing to comment can do so by email to Eileen D. Millet, Counsel to the NYS Unified Court System, at rulescomments@nycourts.gov by Aug. 3, 2022. The NYS Indigent Legal Services Office's “Standards for Determining Financial Eligibility for Assigned Counsel,” issued on Feb. 16, 2021, apply to both criminal and family court proceedings.
 
Being Rude to CPS Does Not Equal Neglect
Parents and advocates alike have long complained that “Child Protective Services” uses its largely unchecked authority to bring baseless neglects as a punishment to parents who do not cooperate with their investigations. In Matter of Micah S. (2022 NY Slip Op 03554 [3rd Dept 6/2/2022]), the Saratoga County DSS appeared to do just that when a caseworker and sheriff's deputy showed up at the residence of a mother and father who had just brought their newborn home from the hospital. They were investigating a report that the mother tested positive for THC. When the father, who was understandably upset, was less than polite to the caseworker, DSS proceeded to make a laundry list of allegations, which resulted in the filing of a neglect proceeding and ultimately the family court’s finding of neglect. The Third Department reversed the neglect finding and specifically noted that the “[r]espondent’s verbal hostility toward petitioner’s caseworker and the deputy during the May 2020 visit is insufficient to demonstrate that the daughter’s physical, mental or emotional condition was in imminent danger of being impaired.” The other allegations, including a single incident of domestic violence, marijuana use, and that the father opened the door of the car while it was going very slow, were all dismissed by the Appellate Division as lacking a sound and substantial basis in the record to establish a neglect. Those with specific questions can feel free to reach out to NYSDA’s Family Court Staff Attorney, Kim Bode, kbode@nysda.org.
 
Committee Votes to Investigate Racial Discrimination in State’s Child Welfare System
After reports of rampant discrimination in the family regulatory system and pleas from impacted parents, the New York Advisory Committee to the US Commission on Civil Rights decided to take action on May 20, 2022, voting to initiate an investigation into the heavy-handed NYS child welfare system and its practices. As reported by Human Rights Watch, before the vote, numerous advocates and impacted parents spoke to voice their concerns. Among the speakers was “Joyce McMillan, an impacted parent, and founder of JMacForFamilies, [who] spoke to the committee about the systemic ‘breaking of family bonds’ and ‘loss of culture, and loss of family tradition’ caused by ‘forcible family separation.’” And, “Angela Burton, one of the advocates who spoke out in support of the investigation, told the committee: ‘There must be a public accounting and reckoning of how current government policies, processes, and practices disrupt and destroy intact, viable Black families.’”
 
Rulemaking to Implement HALT Solitary Announced, Comments Sought
The promulgation of amendments to certain state regulations in NYCRR Title 7 was announced in the April 20, 2022, issue of the NYS State Register. The summary of the amended provisions, relating to the Department of Corrections and Community Supervision (DOCCS), says that “[r]evisions have been made to make the regulations compliant with the new HALT legislation regarding the removal of keeplock and limiting the use of segregated confinement for incarcerated individuals to 15 days and other applicable laws.” The announcement says that “text of rule and any required statements and analyses may be obtained from: Cathy Sheehan, Deputy Commissioner and Counsel, Department of Corrections and Community Supervision, 1220 Washington Avenue, Harriman State Campus, Albany, NY 12226-2050, (518) 457-4951, email: Rules@DOCCS.ny.gov.” The amendments are currently posted on DOCCS’s website. Public comment on the proposed regulations must be submitted to DOCCS by June 19, 2022.
 
The HALT Solitary Campaign has identified several parts of DOCCS’s proposed regulations that are inconsistent with the HALT Act. For example, the HALT Act states that special populations include any person with a disability as defined in Executive Law 292(21)(a). However, when amending the regulations defining special populations, DOCCS failed to eliminate the requirement that “said disability impairs the individual’s ability to provide self-care within the environment of a correctional facility ….”
 
Report Released on COVID’s Impact on State Courts
In May, the University of Illinois’ Institute for Government and Public Affairs published “The Impact of the COVID-19 Pandemic on State Court Proceedings.” The report used nationwide surveys of attorneys, judges, and court personnel to get a sense of “access to courts during the pandemic and their experiences with the new strategies courts adopted to continue hearing and processing cases.”
 
Unsurprisingly, most attorneys felt their clients had less access and worse experiences from March to August 2020, but that things improved after September 2020. Perhaps also unsurprisingly, judges and court staff did not think the pandemic affected court proceedings negatively, with most saying that things stayed the same. Of the responding attorneys, criminal and housing attorneys had the worst impressions of the pandemic’s effects. When asked about virtual appearances, attorneys responded that assessing the credibility of witnesses and communicating effectively with clients were the hardest things to do online, while saying that disability accommodations, hearing length, and access to translators were unchanged.
 
NY Court System Forms Pandemic Practices Working Group
A new offshoot of the Commission to Reimagine the Future of New York’s Courts, the Pandemic Practices Working Group, will “examine the Court System’s response to COVID-19, consider post-pandemic procedures and determine which policies should be kept at the ready if court operations are again interrupted due to an unforeseeable event.” The Working Group held its first public hearing on June 7th. The Working Group plans to hold additional listening sessions and public hearings later this year.
 
NYSDA’s Executive Director, Susan Bryant, testified at the hearing. Bryant recommended that, in developing policies governing criminal and family court proceedings, the court system start from the perspective of litigants whose lives and families are impacted by those proceedings, and emphasized that the courts must ensure that the constitutional and statutory due process and equal protection rights and the right to effective assistance of counsel are given precedence. NYSDA will be submitting written testimony as well.
 
Housing Court Struggles to Find Enough Right to Counsel Attorneys
A New York Daily News article revealed that since March almost 2,500 NYC tenants who are eligible for public defenders under the city’s Right to Counsel (RtC) legislation have instead faced eviction proceedings by themselves, according to data the paper received from the Office of Court Administration (OCA). The legal services nonprofits with RtC contracts say they have struggled to hire enough attorneys, especially after an onslaught of evictions following the cessation of pandemic freezes.
 
Adriene Holder, chief civil practice attorney at The Legal Aid Society, urged OCA to “limit the calendaring of housing cases, according to provider capacity, so all tenants facing eviction have legal representation.” Lucian Chalfen, an OCA spokesman, called any slowdown of calendaring to be “prejudicial and illegal.” Chalfen added, “[w]e are obviously hearing more cases than in the middle of the pandemic with all its stays and restrictions, but what we are doing now is entirely normal. The onus is on [public defenders] to propose some ideas, other than shift responsibility for their inability to hire attorneys and manage their offices.”
 
Commentary: It’s too easy to extract false confessions from youths
The above-titled piece published in the Times Union was authored by Dawne Mitchell, Chief Attorney for the Juvenile Rights Project of the Legal Aid Society. Mitchell calls on Albany to pass legislation, S.2800-C/A.5891-C, to protect youth from coercive interrogation tactics that have led to false confessions. “Only mandatory consultation with legal counsel will protect New York’s kids from the inherently coercive pressures of interrogation and deceptive policing tactics. It’s time for legislators to stand up for our kids and safeguard their right to remain silent.” The Assembly passed the bill on June 1st, but the Senate did not vote on the bill before the session ended. This is one of many bills that did not get voted on by both houses. More information about bills that did pass at the end of session will be in future editions of News Picks.
 
Firearm Forensics Remain Flawed
A May 25th article in Scientific American notes that in 2009, a “National Research Council (NRC) report criticized the firearms identification field as lacking ‘a precisely defined process’” and in 2016 another report, by the President’s Council of Advisers on Science and Technology (PCAST), echoed that criticism. Now, the article says, courts are beginning to recognize the limits of forensic evidence offered on the question of whether a particular gun fired certain bullets or cartridge cases.
 
Unfortunately, the article, which calls for scientists to act as “anti-expert experts” in courtrooms, does not cite specific cases. One federal district court issued a decision two years ago after holding a hearing on a motion in limine regarding firearm identification evidence; the court granted the motion in part, limiting the testimony of an expert, saying, “[i]t is possible that the AFTE [Association of Firearms and Toolmark Examiners] method could be expressed in scientific terms, but I have not seen it done in this case, nor elsewhere.” United States v Adams, 444 F Supp 3d 1248 (D Ore 2020). [Footnote omitted.] After discussing Adams and other sources, another federal court said that if a proffered expert witness “intends to go beyond testimony that merely notes the recovered cartridge casings could not be excluded as having been fired from the recovered firearm, the Court will inform the jury that: (1) only three studies that meet the minimum design standard have attempted to measure the accuracy of firearm/toolmark comparison and (2) these studies found false positive rates that could be as high as 1 in 46 in one study, 1 in 200 in the second study, and 1 in 67 in the third study, though this study has yet to be published and subjected to peer review.” United States v Cloud, No. 1:19-CR-02032-SMJ-1, 2021 WL 7184484, at 11 (ED Wash 12/17/2021); but see United States v Chavez, 5:15-cr-00285-LHK, 2021 WL 5882466 (ND Cal 12/13/2021).
 
In an opinion that was published in September of 2019, in the case of United States v Tibbs, District of Columbia Superior Court Judge Todd E. Edelman wrote a detailed opinion on the subject.
 

Association News

Training Updates

NYSDA's Annual Meeting and Conference
As noted at the top of this edition, NYSDA’s Annual Meeting and Conference will be held from July 24 to 26, 2022. This year we will be at the Saratoga Hilton located in downtown Saratoga Springs. Book your room now at the Saratoga Hilton by visiting https://book.passkey.com/e/50344851. The alternate hotel is the Hilton Garden Inn Saratoga Springs; reservations can be made at https://www.hilton.com/en/attend-my-event/nys-defenders-conference/. The special room rate is available through June 27th or when rooms have been fully booked, whichever comes first.
 
Conference registration and the full training agenda will be available soon. For an overview of the conference schedule, click here. For those who are unable to travel to Saratoga Springs, we expect to be able to livestream the training sessions via Zoom. Stay tuned for more information.

 
Friday, September 30, 2022: NYSDA will be hosting a full-day Family Court Program at Syracuse University College of Law. The training will be available in person and online. More details will be available soon.

 
NYSDA is Hiring: Staff Attorney, Discovery and Forensic Support Unit, Backup Center
NYSDA is seeking a Staff Attorney for our new statewide Discovery and Forensic Support Unit. This Unit, part of our Public Defense Backup Center, will be instrumental in assisting defenders around the state to advance quality representation in criminal and family court cases involving discovery and forensic evidence. Details about the position and how to apply can be found here.