News Picks from NYSDA Staff
June 15, 2020
Black Lives Matter to the New York State Defenders Association
Please see NYSDA’s
in response to recent events and in full support of the defender and advocate community.
Defense Lawyers Decry Racism, Police Violence
Public defenders and other defense lawyers, many of whom represent clients harmed by the racism and police violence currently making headlines, are stating clearly that change must come in the wake of George Floyd’s killing by police in Minneapolis. The institutional defender offices in New York City issued a
focusing on their jurisdiction, demanding “accountability and radical change.” The NYS Association of Criminal Defense Lawyers issued a statement
New York Law Journal
on May 29, which included this: “‘as criminal-defense attorneys across New York State, we have witnessed firsthand the violence, degradation, and destruction wrought on individuals and communities of color by a brutal and punitive law-enforcement apparatus.’” The National Legal Aid and Defender Association
that it joined the “community of public defenders, civil legal aid providers and client advocates in mourning the murder of George Floyd at the hands of the Minneapolis police and calling for justice.” Other defenders are also joining the now-worldwide calls for racial justice and an end to deadly policing while plunging headlong into the defense of people arrested at protests. NYSDA supports the calls to end racism and deliver justice, and stands ready to provide backup services to defenders with cases arising from the protests.
Monday, June 8, saw reports of public defenders in the streets in support of calls for change. In New York City,
included lawyers walking from Bronx Supreme Court to Foley Square. In Rochester, defenders and community members marched from the Monroe County Public Defender’s Office to the Public Safety Building. In
, lawyers from the Neighborhood Defender Service of Detroit marched in support of demands that included investment in the community, ending “no knock” search warrants and other damaging practices, and release of incarcerated people particularly susceptible to COVID-19. Defenders also spoke out in other ways, like this
: “The Defenders of New York’s 7th Judicial District are well aware of the structural racism in the system. We do not accept it. #BLMtoPublicDefenders.”
Civil Rights Law 50-a Repealed, Related Bills Passed and Signed
, the Governor signed four
passed by the
earlier in the week regarding law enforcement: the repeal of Civil Rights Law 50-a (
L 2020, ch 96
); and establishment of the Office of Special Investigation within the Attorney General’s Office (
L 2020, ch 95
, effective Apr. 1, 2021); the “Eric Garner anti-chokehold act,” establishing a new crime of aggravated strangulation (Penal Law 121.13-a) (
L 2020, ch 94
, effective immediately); and an amendment to Civil Rights Law 79-n(2) to permit a civil action by a member of a protected class against a person who “summons a police officer or peace officer without reason to suspect a violation of the penal law, any other criminal conduct, or an imminent threat to a person or property” (
L 2020, ch 93
, effective immediately). The Office of Special Investigation will investigate and, if warranted, prosecute cases where the death of a person is caused by an act or omission of a police or peace officer. Related bills signed by the Governor over the past few days include:
- L 2020, ch 98 (effective June 13, 2020): Repeals Penal Law 240.35(4), which prohibited the wearing of masks in public.
- L 2020, ch 100 (effective 30 days after June 14, 2020): Establishes the “New Yorker’s right to monitor act.”
- L 2020, ch 101 (effective 90 days after June 15, 2020): Adds a new Executive Law 837-v, requiring law enforcement and peace officers who discharge a weapon “while on duty or off duty under circumstances wherein a person could be struck by a bullet from the weapon” to verbally report the incident to a supervisor within six hours and prepare a written report within 48 hours.
- L 2020, ch 102 (effective 180 days after June 15, 2020): Known as the Police STAT Act, the bill requires the Office of Court Administration to collect and publish demographic and other data regarding the prosecution of misdemeanors and violations and requires law enforcement departments to promptly report any arrest-related death to the Division of Criminal Justice Services.
- L 2020, ch 103 (effective June 15, 2020): Adds section 28 to the Civil Rights Law, entitled “Medical attention for persons under arrest.”
Kamins Reviews Significant Aspects of Bail, Discovery, and Speedy Trial Law Changes
In his June 1st
Criminal Law and Procedure column
New York Law Journal
, Barry Kamins reviewed some significant changes to the state’s bail, discovery, and speedy trial laws. The amendments to the bail law, which take effect July 2, include changes related to second-degree burglary charges. Kamins explains the differences between the original legislation and the amendments. Under the original bail reform law, when a defendant was charged under subsection (2),
, entering a “dwelling” with the intent to commit a crime, it was classified as a non-qualifying offense. The amendment makes clear that the crime becomes a qualifying offense when an individual enters the “living area of the dwelling.” Since the term “living area” is not defined in the Penal Law and entering the “living area” is not an element of the crime, Kamins explains that “prosecutors will need to inform the court at arraignments as to any facts that support a request for bail.”
He also discusses the changes that permit judges to set bail on certain repeat offenders. For example, judges will be able to set bail on “an individual who is charged with a felony offense while serving a sentence of probation or while released to post release supervision. CPL 510.10[r]. In addition, any felony becomes bail-eligible when the defendant ‘qualifies for sentencing on such charge as a persistent felony offender.’ CPL 510.10[s].”
A Return to In-Person Court Operations and COVID-19 Concerns
On June 2nd,
Chief Judge Janet DiFiore and Chief Administrative Judge Lawrence K. Marks
announced a limited return to in-person court appearances
for courts in judicial districts whose regions have entered phase 2 of the Governor’s phased statewide reopening plan. While most court appearances will continue to be heard virtually, essential family court cases, including many Family Court Act article 10 child welfare proceedings, will be held in person. Many defenders worry about the lack of uniformity within and among judicial districts, with reports of some appearing virtually, and others in person, sometimes within the same court proceeding. Some courts are refusing to do in-person court appearances all together. There is also a concern about a perceived lack of courthouse preparedness to address safety and health concerns regarding COVID-19. It is unclear how defenders will be able to effectively represent their clients while maintaining social distance. OCA has not released guidance on whether adequate space will be made available to attorneys within the courthouse to speak with their clients while maintaining social distance. Attorneys wishing to share their concerns, or experiences regarding in-person family court appearances, should contact NYSDA’s Family Court Staff Attorney, Kim Bode, at
New protocols and procedures are continuously being released by OCA and individual judicial districts. Please visit our
Court Re-Opening Plans page
for orders and guidance, including recently issued phase 3 plans for courts in the Fourth and Seventh judicial districts, and our other
DOCCS Releases Re-Opening Plan Fact Sheet
The New York State Department of Corrections and Community Supervision (DOCCS) has released a
that summarizes its plan for re-opening various parts of the agency’s work. The summary includes information about prison programs; internal movement of individuals in DOCCS custody; prison visits; and community supervision. The fact sheet includes the following:
- No earlier than June 15, DOCCS will start to receive individuals sentenced to state prison from county jails once a county reaches Phase 2 of re-opening, so long as several COVID-19 criteria are met.
- DOCCS will supply all people in prison “a surgical-type mask and a cloth face covering” and will make hand sanitizer available in all facilities. All prison staff must wear face masks while on duty.
- “Legal visits will continue as non-contact visits at the present time” and the temporary suspension of other visitation has been extended. “It is anticipated that the suspension will continue until such time as all regions have been approved for Phase 3 of re-opening under NY FORWARD.”
- Prison programs, such as mental health programming, Step-Down Programs, and programs such as ASAT and Sex Offender Counseling and Treatment will be gradually reintroduced, but academic and vocational programming will continue to be suspended through the summer.
- DOCCS will continue to individually review for early release “individuals who have not committed a violent felony or sex offense, that will be released within 90 days … so long as they have stable housing and health care” and pregnant/post-partum individuals “who have not committed a violent felony or sex offense, and would otherwise be released within six months, so long as they have stable housing and health care.”
- Parole offices will be allowed to re-open on a regional basis in regions that have been approved for Phase 2 of NY FORWARD. All staff, visitors, and people on parole will be monitored and screened in accordance with current COVID-19 policy. Reporting days and hours will be expanded, as needed, to minimize density, and staff and persons on parole must wear masks during office reports and intake interviews.
Federal Court Orders ICE to End NY Courthouse Arrests
federal judge on Wednesday barred U.S.
and Customs Enforcement from carrying out a Trump administration policy of arresting undocumented immigrants in and around state courthouses,” the
New York Law Journal
in the Rochester
Democrat and Chronicle
, the June 10 ruling prevents ICE “from ‘conducting any civil arrests on the premises or grounds of New York State courthouses, as well as such arrests of anyone required to travel to a New York State courthouse as a party or witness to a lawsuit.’” The
begins with this:
“Recent events confirm the need for freely and fully functioning state courts, not least in the State of New York. But it is one thing for the state courts to try to deal with the impediments brought on by a pandemic, and quite another for them to have to grapple with disruptions and intimidations artificially imposed by an agency of the federal government in violation of long-standing privileges and fundamental principles of federalism and of separation of powers.”
The court found for the plaintiffs—the State of New York and the Kings County District Attorney—on the grounds that the Immigration and Naturalization Act “incorporates the state common-law privilege against civil immigration arrest for those present in New York state courthouses, or on courthouse grounds, or necessarily traveling to or from court proceedings ….” The court also found for the plaintiffs on the assertion that an ICE directive about courthouse arrests, “as well as less formal shift in practice and policy in 2017, were arbitrary and capricious, in violation of § 706(2)(A) of the APA [Administrative Procedure Act].”
NACDL Issues Report, Statement of Principles, on Court Reopening in the COVID-19 Era
The National Association of Criminal Defense Lawyers (NACDL) issued a
Statement of Principles and Report
on June 2, 2020, dealing with “Criminal Court Reopening and Pubic Health in the COVID-19 Era.” The report recognizes the “inherent conflict between core constitutional rights and public safety” that exists in efforts to deal with criminal matters during the pandemic. The core principles set out by NACDL include attention to both health issues and due process. The report notes that high-risk individuals should not be required to participate in person in proceedings if there is a risk of infection, and also that necessary measures taken to prevent spread, but which interfere with clients’ rights, must be limited in time and tailored to articulable public health needs.
Headlines about the report have tended to focus on the report’s conclusion that proceeding to jury trials at this point in the pandemic would be unsafe and unwise. Such accounts include those in NACDL’s own
The Crime Report
. But the report covers much more. Citing Rules of Professional Conduct Rule 1.7, the report notes that the right to conflict-free representation cannot be met “where defense counsel are placed at risk of infection and fear contagion.” (In New York, Rule 1.7(a)(2) of the
says that a lawyer should not represent a client if “there is a significant risk that the lawyer’s professional judgment on behalf of a client will be adversely affected by the lawyer’s own financial, business, property or other
.” Emphasis added.) The NACDL report notes that danger of infection makes hallmarks of effective representation impossible, such as face-to-face visits, significant client contact, and investigation including witness interviews, and that measures taken to operate safely have compromised attorney-client relationships. But delaying proceedings impacts the right to a speedy trial; NACDL notes ways to minimize pressure on accused people, including liberal use of pretrial release.
Perhaps most importantly for going forward, the report includes core principles reflecting that “Measures Designed to Facilitate Reopening Must Not Abridge Fundamental Constitutional, Statutory, or Customary Rights.”
Representing Clients Charged During Street Protests
Clients arrested during protests against racism and use of excessive force may pose distinct issues for defense attorneys. One source of information on such representation is a webinar from the National Association for Public Defense (NAPD) on Representing Protesters and Activists. NAPD has circulated to its members a link to the
of the webinar from
. NYSDA thanks NAPD for permission to circulate it in News Picks. Defenders can join NAPD
In some cases involving protesters, it is possible that clients may want defense counsel to work with or consult organizations or movements dealing with the social issues at hand, and with the lawyers representing those entities. A 2018 Hofstra Law Review publication,
Movement Lawyering Roundtable Symposium
, includes a case study about movement lawyers “Working with Traditional Lawyers” that addresses some issues. While focused on ethical issues for lawyers working for social change rather than the traditional defense attorney, it raises potential problems that defense counsel may encounter. An example is disagreement over a plea offer that the criminal defense lawyer believes is in the client’s best interest but the organization in which the client is active wants to continue public pressure to have the charges dropped, causing the defense lawyer to accuse the organization’s lawyer of interfering in the representation.
A client whose behavior stems from a cause may have goals different from other clients, which attorneys need to understand—as they need to understand every client’s individual goals. In providing client-centered representation, attorneys need “to spend sufficient time with clients to establish a meaningful client/attorney relationship” and “provide the client with the opportunity to make an intelligent and informed decision where a decision is to be made by the client.”
, Standard 6. Provisions in the
Client-Centered Representation Standards
are apt here: clients want counsel to listen to them, and to work and strategize in collaboration with them and to be culturally sensitive, appreciate the dimensions of the client’s life, and become familiar with the communities from the clients come. These standards were created by NYSDA’s Client Advisory Board.
Resources for Dealing with the Effects of Racism and Civil Unrest
In addition to the legal work resulting from George Floyd’s killing, the protests that followed, and reactions to them, criminal and family defenders may need to assist clients—and themselves—to deal with emotional and behavioral fallout. The New York Association of Psychiatric Rehabilitation Services, Inc. (NYAPRS) recently circulated “
Resources for Coping With and Addressing Racial Oppression: CTAC
.” This list of materials from the Community Technical Assistance Center of New York is intended “to help practitioners better understand, discuss, and process racism in their work with individuals and families.” The Mental Health Association of New York (MHANYS) circulated materials from the Substance Abuse and Mental Health Services Administration (SAMHSA), including resources for
coping with a disaster or traumatic event
Coping With Grief After Community Violence
, and tips for survivors of disasters or other traumatic events on
coping with grief
The trauma from repeated killings and brutalization of Black people by police, and from violence encroaching on peaceful protests, is compounded by the ongoing COVID-19 pandemic. Resources for dealing with emotional health issues arising from the outbreak can be found on NYSDA’s Coronavirus
Self-Care and Helping Others
Now Online: January-May Issue of NYSDA’s Backup Center REPORT
The first issue of NYSDA’s
Public Defense Backup Center REPORT
, is available on the NYSDA website. NYSDA members will receive a hard copy of this issue when printing and mailing is completed. If you have any questions, please contact the Backup Center at 518-465-3524.
Upcoming Webinars for This Week and Beyond
With in-person training events canceled due to the continuing effort to contain the COVID-19 outbreak, NYSDA has been conducting regular criminal and family webinar CLEs. This week we are featuring two webinars. On Wednesday, June 17, Keith Baumann and Annie Carney from
will be presenting a training on
Family Court Discovery In Article 10 Cases
. And on Friday, June 19, Jonathan Cohn, Esq., a partner at Gerstenzang, Sills, Cohn & Gerstenzang, will be presenting
Discovery with a Twist: CPL Article 245 and VTL/DWI Practice
. The following week, on Friday, June 26, Nancy Farrell from the Ontario County Office of the Public Defender, and Heather Prado from the Hiscock Legal Aid Society, will be presenting
No Job, No Services, No Contact = Violation...NOT! Defending Against Family Court Violations During COVID-19
The cost to attend each of these programs is $25; tuition assistance for financial hardship is available. For further information on any of these programs or for any training related questions, please contact Megan O’Toole at
Stay tuned for training announcements later this month from our Veterans Defense Project on PTSD, TBI and Suicide; Military Background and Client Interview Techniques; and Military Culture and Mitigation.
Please check the
NY Statewide Public Defense Training Calendar
for offerings from NYSDA and others.
Annual Meeting and Conference Will be ONLINE, July 27 to 31, 2020
NYSDA announced in early June that, while canceling the in-person 53rd Annual Meeting and Conference, the Association is transitioning conference events online. During the last week in July, we will be offering webinars providing more than a full year’s worth of CLE credit, along with virtual networking events. We are also pleased to announce that sessions focused on family court practice will be part of this year’s conference. Plans are underway to hold the Annual Membership Meeting online during that time, as well as a Chief Defender Convening. The announcement is
The full program announcement and registration forms will be available in a few weeks.
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