Challenging Certificates of Compliance, Keep up the Fight
In a follow up to our May 28th edition of News Picks from NYSDA Staff, NYSDA has updated its Discovery Reform Implementation web page and is adding new cases as they become known and available. In this edition, we are sharing People v Haymon, 2021 NY Slip Op 50267[U] (County Ct, Albany Co 3/29/2021), where the court ruled speedy trial continued to accrue where a prior certificate of compliance (COC) was invalid and the associated declaration of readiness was illusory because there was outstanding law enforcement material. The court, quoting People v Quinlan (2021 NY Slip Op 21020) said: “‘[R]egardless of whether the People have actual possession of discoverable material and information from law enforcement, such material and information is statutorily deemed to be in the People’s possession’ ….” The court further explained, “‘[W]hat the People may not do is file a certificate of compliance in which they claim to have exercised due diligence and turned over “all known material and information,” while at the same time not actually turning over all known material and information’ ….”
 
Share reported and unreported decisions with us at [email protected]! We’d like to continue to refresh our page and share cases with defenders as they navigate these challenges and also hear about your victories!    
 
Failure to Advise Respondent in FCA Article 6 Custody Case of Right to Counsel Reversible Error
In Matter of Renee S. v Heather U., 2021 NY Slip Op 03635 (3rd Dept 6/10/2021), a Family Court Act (FCA) article 6 custody proceeding was remitted, based on the court’s failure to advise the respondent grandmother of her statutory right to counsel in violation of FCA 262. In returning this case to the lower court for a determination of whether the grandmother financially qualifies for assigned counsel, the Third Department stated, “The purpose of providing counsel to certain persons involved in Family Court proceedings is to provide protection against ‘infringements of fundamental interests and rights’ (Family Ct Act § 261). The grandmother was listed as a respondent in the mother’s modification petition brought under Family Ct Act article 6, part 3 (see Family Ct Act § 262 [a] [iii]; Matter of Wilson v Bennett, 282 AD2d at 934), which sought sole legal and primary physical custody of the child. As of the initial appearance on that petition in March 2017, the grandmother jointly shared ‘secondary legal custody’ with the mother. Accordingly, the mother’s request for sole legal custody of the child, if granted, had the potential to alter the grandmother’s custodial rights.”
 
FAQ re the Driver’s License Suspension Reform Act
NYSDA thanks Ranit Patel and Scott Levy from the Bronx Defenders who have provided training and support on the Driver’s License Suspension Reform Act and these FAQ. If you have any questions, please contact Ranit Patel at [email protected].
 
Q: What suspensions will be lifted on June 29th?
A: Only suspensions for unpaid traffic fines. This does not include suspensions for unanswered traffic tickets, missed traffic hearings, unpaid Driver’s Responsibility Assessments, or unpaid child support.
 
Q: How does the DLSRA impact AUOs/VTL § 511s?
A: The short answer is it doesn’t. The DLSRA does not amend VTL § 511. The DLSRA only changes the circumstances that may lead to a § 511. For example, as of March 9th, people no longer have their licenses suspended for unpaid traffic fines and as of June 29th such suspensions will be cleared from all records. Suspensions are still permitted for unanswered tickets/missed hearings, but people will be able to clear these suspensions by entering into payment plans, which also go into effect June 29th. Thus, while the DLSRA doesn’t change § 511, we expect that many fewer people will be charged with AUOs because fewer people will be driving with suspended licenses. Also, many defenders have been able to adjourn cases in the meantime so that clients can enter into payment plays after June 29th and then use their newly cleared driving abstracts to negotiate better dispositions down from § 511. 
 
Q: How can my client enter into a payment plan?
A: It will depend on where the ticket was issued. Courts and the DMV have not released their application process yet, but the DMV released this Financial Disclosure Form that will be required for all such applications.
 
Justice Equity Act or Qualified Agency Bill Passed, Would Allow Public Defenders Direct Access to Clients’ Rap Sheets
In the final days of legislative session, the Assembly and Senate unanimously passed the Qualified Agency bill, A7729/S7073. Susan Bryant, Executive Director of the New York State Defenders Association (NYSDA), said, “Defense counsel cannot properly evaluate or investigate a case, assess a client’s eligibility for diversion or other programs, or determine the immigration consequences of their client’s case or the client’s predicate status without access to complete criminal history information. In 1990, the NYS Division of Criminal Justice Services (DCJS) recommended such access. ‘Qualified agencies,’ as defined in Executive Law § 835(9), have access to criminal history information. This bill would add agencies and organizations that provide public defense representation and administrators of assigned counsel plans to the list of qualified agencies, so that those entities can enter into use and dissemination agreements with DCJS to access criminal history information.”
 
Senator Jamaal Bailey said, “A fair and equitable justice system requires that public defenders and counsel have access to the proper resources needed to represent their clients. The passing of this bill creates a broader stroke of equity in our justice system. Instead of being steps behind, public defenders and legal aid societies will be in tandem with prosecutors by being granted automatic access to the criminal histories of their clients and being designated as ‘qualified agencies.’ As chair of the Codes Committee and sponsor of this bill, I am pleased that this bill passed both houses and that we will be a step closer towards equity and justice in our state.”
 
Assembly Majority Leader Crystal Peoples-Stokes said, “The Justice Equity Act or Qualified Agency bill, provides defense attorneys with an important instrument to enhance justice and improve efficiency. It is a key tool to confirm expunged marijuana convictions under the MRTA law, and long overdue.” 
 
The full press release, which was issued with CDANY and NYSACDL, is available here. NYSDA thanks the bill sponsors and supporters of the bill in and outside of the defender community and will continue to advocate for the Governor to sign the bill into law.  
 
End of Legislative Session Brings Some Successes, Some Disappointments
One of the biggest disappointments is that The Clean Slate Act, S1553B, failed to pass before the end of this legislative session due to a reported drafting error. The bill, which was expected to pass in the final days, was considered by many advocates to be the top priority this session due to its impact on the lives of those marred by the effects of a criminal conviction.
 
Many are hopeful that the Clean Slate Act can still become law; if passed, it will change the lives of millions of New Yorkers by automatically sealing certain criminal convictions. Organizations, including The Legal Aid Society, are calling on Albany to immediately reconvene to pass the Clean Slate Act. Emma Goodman, a staff attorney with the Criminal Defense Practice’s Special Litigation Unit at the Legal Aid Society, stated, “‘The Clean Slate Act was moments away from passing last night when the Legislature turned its back on more than two million New Yorkers, the overwhelming majority from communities of color, by failing to pass this critical legislation.’”
 
Less Is More Passed
In a partial victory for parole reform, the legislature passed the Less Is More Act, S1144A, to prevent those on parole from being sent back to prison for technical violations. But it failed to pass the Fair and Timely Parole and Elder Parole bills.
 
As reported in the Democrat and Chronicle, “The Democratic-led Legislature appeared close to a deal in recent days to overhaul the state’s parole system, allowing those released from prison more opportunity to clear their records and better return to society. The Senate and Assembly passed the Less Is More Act to prevent people on parole from being sent back to prison for technical violations. But they couldn’t reach agreement to automatically seal most convictions after several years or focus parole hearings on prisoners’ rehabilitation rather than their original crimes.” On the last day of the legislative session, Release Aging People in Prison held a press conference to “make clear that parole reform is not done for the year without passage of the Elder Parole and Fair & Timely Parole bills.” NYSDA supports both parole reform bills.
 
Governor Signs Amendments to Prosecutorial Conduct Commission Law
On June 17th, the Governor signed into law amendments to the Prosecutorial Conduct Commission law, A1634. As noted in the Governor’s press release, “[t]he legislation clarifies the Commission’s power to review complaints of prosecutorial misconduct and refer them to the disciplinary committees of the Appellate Divisions and the Governor’s office.”
 
Amendments and Other Bills Passed but Not Yet Signed
Some of the other criminal and family court bills that passed the legislature, and if signed by the governor will mean real change for clients are listed below. NYSDA will provide updates on the status of the bills in future editions of News Picks.
 
  • A459: The bill would amend Criminal Procedure Law (CPL) 440.10 regarding “proceedings to vacate convictions for offenses resulting from sex trafficking, labor trafficking and compelling prostitution and provides for confidentiality of records of such proceedings.”
  • A2653: The bill would amend CPL 440.10(2)(b) and (c) to “permit the court to grant post-conviction motions to vacate a judgment when the issue raised upon such motion is ineffective assistance of counsel in certain cases in which the court would otherwise be required to deny the motion.”
  • A4319: The bill would amend CPL 340.40 to expand the right to a jury trial to all those charged with a class B misdemeanor and some unclassified misdemeanors in New York City.
  • A5689: The bill would amend CPL 380.55 to streamline the assignment of appellate counsel by requiring the appellate court to presume the defendant is eligible for counsel if the attorney assigned to represent the defendant before the trial court “provides a sworn representation that the defendant continues to be eligible for assignment of counsel.”
  • A6769: The bill would amend CPL 720.20 to provide “that an individual who was an eligible youth who was not determined to be a youthful offender by the sentencing court may apply to such court for a new determination after at least five years have passed since the imposition of the sentence, or at least five years after the individual’s latest release from incarceration, if such individual was sentenced to a period of incarceration.”
  • A7713: The bill would amend Penal Law 30.00 and CPL 220.10, 725.05 & 725.10 to clarify two parts of the Raise the Age law: (1) it would explicitly provide for the removal to family court of cases where the adolescent offender pleads guilty to a misdemeanor; and (2) it would clarify that when a case has been removed to family court for adjustment, the youth part judge should direct the youth to the probation department’s intake office for an assessment without appearance in family court or the commencement of a juvenile delinquency proceeding, except that youth in detention or in the sheriff’s custody would still be required to appear in family court no later than the next day court is in session.
  • S4051A: The bill would amend various provisions of Family Court Act article 3 and the Social Services Law to raise the lower age of juvenile delinquency jurisdiction from seven to twelve years of age, except for specified homicide and manslaughter cases, and establish differential response programs for children under the age of twelve.
  • S6357: Known as the Preserving Family Bonds Act, the bill would amend Family Court Act 634 and Social Services Law 384-b to “[e]stablish[] procedures regarding orders of post-termination visitation and/or contact between a child and such child’s parent and for modification of such orders.” This is the second time that a bill allowing for post-termination contact has passed the legislature. The Governor vetoed it in 2019. Advocates are hopeful that the amendments made to the bill language will ensure that the Governor will sign it this year. This would give judges the discretion to allow children to have contact with their parents and siblings, post termination, if it is determined to be in the best interests of the child. 
  • S7053A: The bill would clarify the Driver’s License Suspension Reform Act by amending VTL 226, 514, 510 & 1802 to ensure that those who have had their license to drive a motor vehicle or motorcycle suspended can have the “suspension … lifted if the individual enters into an installment payment plan ….”
 
Parents Leading the Charge to Change the Family Regulatory System
In an interview with The New School’s Center for NYC Affairs, Joyce McMillan shared how advocacy has changed in recent years: “Parent involvement has shifted the conversation drastically from six years ago. With parents leading the charge, many people are now referring to child welfare as the family policing/regulation/destruction system. More parents are displaying a deeper understanding of the harms caused by that system. They are critically thinking about system narratives versus system realities, and are more empowered to be involved on various levels.” McMillan outlined some of the legislative changes she and other advocates are trying to get passed in New York, including the Miranda Rights bill and a bill that eliminate anonymous reporting of suspected child abuse or maltreatment to the Statewide Central Registry.
 
Personal Pronouns: Judicial Ethics and Language
While it predates Pride Month, this document is worth noting now. In Opinion 21-09, on Jan. 28, 2021, the Advisory Committee on Judicial Ethics confronted the following inquiry: “A judge asks if they may ‘require a singular pronoun be used for a singular person’ in order to ‘keep order in the courtroom, and to have a clear record.’” The Committee concluded that where a party or attorney has indicated a desire to have the pronoun “they” used for them, the judge may not require them to use “he” or “she” instead. The opinion cites rules and opinions that relate to: avoiding “even the appearance of impropriety”; acting to “promote public confidence in the judiciary’s integrity and impartiality”; manifesting no bias or prejudice including as to “sexual orientation, gender identity [or] gender expression’’; and curbing “manifestations of bias and prejudice in the courtroom” by others. The opinion explains the basic grammar of pronouns, including the recognition of “they” as “a grammatically correct use for an individual,” and flatly states that while judges “may take reasonable steps to ensure the clarity of the record,” they must avoid “any appearance of hostility to an individual’s gender identity or gender expression.” A rigid policy requiring that only “he” or “she” can be used “could result in transgender, nonbinary or genderfluid individuals feeling pressured to choose between the ill-fitting gender pronouns” and “could not only make them feel unwelcome but also distract from the adjudicative process.”
 
Individuals who feel unsure about language that is inclusive and welcoming can find guides to help. For example, National Public Radio’s special series for Pride Month includes A Guide to Gender Identity Terms. One of the hallmarks of living language is that it changes, so no one guide is or will remain the irrefutable source of information. NYSDA encourages defenders (and everyone) to be respectful of clients (and others) in the use of language concerning gender (and other personal identities) during Pride Month and year round.
 
Opinion: Language Matters. How Reforming the Criminal Justice System can Start with Words
In a San Francisco Chronicle Opinion piece with the above title, Public Defender Brendon Woods says, “Our systems are so accustomed to dehumanizing people through language that many of those who participate don’t even realize that we are doing it. Nor do we fully understand the ramifications of our words. And so I’m urging all judges and all of those working in the criminal system throughout the nation, to stop using the following terms and to replace them with terms that recognize people’s humanity.” Woods shares some suggestions on word changes that can have an impactful change. 
 
Blaming Death at Police Hands on Victims’ Sickle Cell Trait
The willingness of some pathologists “to rule in-custody deaths of Black people accidents or natural occurrences caused by sickle cell trait” was highlighted in a New York Times article on May 15, 2021. The genetic trait occurs when a person has only one of the two genes that are required for full-blown sickle cell disease (SCD). While SCD is “a painful and sometimes life-threatening condition that can deform red blood cells into crescent shapes that stick together and block blood flow," sickle cell trait, “carried by one in 13 Black Americans[,] … is almost always benign.” The article notes that the defense invoked sickle cell trait in the trial of former police officer Derek Chauvin for the murder of George Floyd, and that the trait has been cited in at least 46 other instances of in-custody deaths over the past 25 years. “In three cases, deaths linked to sickle cell trait that were deemed natural or of indeterminate cause were later ruled homicides,” the article says, including the 2006 death of 14-year-old Martin Lee Anderson in a northwest Florida juvenile detention camp.
 
The trait may indeed underlie death “in rare cases of extreme overexertion,” experts cited in the article note, and “pathologists would not be doing a thorough job if they identified sickle cell trait and failed to mention it in their reports.” But, like any expert finding, attributing death to the trait when there has been a struggle warrants close scrutiny. Also, the potential for bias, from racial stereotyping to favoring law enforcement, should not be overlooked. See eg “Response to New York Times investigation on sickle cell trait being cited in police custody deaths,” The American Society of Hematology (May 25, 2021).
 
Failure to Treat CSD in Detention Facilities is Another Issue
The Times article includes comment by British researcher Simon Dyson. He co-authored a study published in 2006 about “Sickle Cell Anaemia and Deaths in Custody in the UK and the USA.” (For information about sickle-cell terms like “disease,” “trait,” and “anemia,” visit this page.) The abstract of Dyson’s article indicates that sickle cell conditions have had a two-fold effect on people in custody. One is the misuse of the trait to explain away deaths associated with forced restraint, and the other is lack of proper health care for those who have the disease. NYSDA’s files contain several news articles involving SCD in state and local facilities. The cost of proper care for SCD was noted in an article wherein the Ontario County Sheriff explained that rising costs at the jail in 2014 were attributable in part to health care for, among others, “[a]n inmate with sickle-cell anemia in its late stages.” And as noted in a 2002 Newsday article, the State Commission of Correction found, as did an independent medical expert, that care by the jail in Nassau County for a person with sickle cell anemia was inadequate. A different connection between CSD and detention was noted during the COVID-19 pandemic, with blood disorders including SCD being identified as underlying conditions increasing the danger from the virus; lawyers have cited CSD when seeking release from detention of people at high risk.
 
Other Legal Issues Can Arise Around Sickle Cell Conditions
Defenders may encounter sickle cell conditions in other areas, too. Those representing clients suspected of inflicting head trauma in what have been called “shaken baby” cases may want to determine if SCD in an alternate explanation for a child’s injuries. See, for example, a 2018 article in the Albany Law Review. Sickle cell questions may surface in family issues regarding medical records, screening, and decisions. For example, New York schools are required to screen and where appropriate test for sickle cell anemia, and to report results first to parents and, if the parents are unwilling or unable to act, “to the director of school health services, whose duty it shall be to provide relief for such students.” Education Law 904. Parents living with SCD and taking medication for the resulting pain may experience legal problems. See eg Matter of Janique Y., 256 AD2d 1053 (3rd Dept 1998). Lawyers seeking clients’ records from the Department of Veterans Affairs (and perhaps other entities) should note that sickle cell conditions may be placed in a specific category of “sensitive diagnosis” on forms, requiring specific permission for release.




Association News

NYSDA Observes Juneteenth
Executive Director Susan C. Bryant’s announcement about Juneteenth stated: “NYSDA’s offices will be closed on the 2021 observed day, Friday, June 18, to allow staff the opportunity to observe Juneteenth and celebrate freedom and the history, achievements, and perseverance of African Americans and reflect on the ongoing, systemic racism and injustice in our society.” Thought of as a celebration of the end of slavery in the U.S., this observance of the day that Union Army General Gordon Granger signed an order enforcing in Texas the Emancipation Proclamation can also represent the depressing slowness with which slavery ended. Historical information about this holiday, from sources such as Learning For Justice’s Teaching Juneteenth to a PBS post of Henry Louis Gates’ reflections on What is Juneteenth?, illustrates the slowness of efforts to eradicate slavery.
 
We share links and excerpts from just a few of the many statements and articles regarding Juneteenth, which is now a federal public holiday.
 
  • Equal Justice Initiative, “On This Day, June 19, 1865”: “Juneteenth does not denote a struggle completed or a finished line reached. Black Americans faced many threats to their liberty and their lives in the years after the Civil War, and face continued injustice still.”
  • Zamir Ben-Dan, CUNY Law School Professor and Staff Attorney, The Legal Aid Society, “Juneteenth and the Struggle for Racial Equality”: “When the African Americans in Texas were emancipated on June 19, 1865, they celebrated their emancipation with hopes of a brighter future, a future consisting of healing from the traumas of the past and recognition as equal human beings. One hundred fifty-six years later, we celebrate Juneteenth with similar hopes, but also with healthy trepidation. America must do better by its African American citizenry, if these hopes are ever to be realized—and if the fears of betrayal are to be dispelled once and for all.”
  • WBUR, “Why Juneteenth Isn’t Taught in Schools – And What That Means for Our Understanding of Slavery”, featuring an interview with author Clint Smith: “‘What I think most about when I think about Juneteenth is how there were millions of people across generations who are fighting to end this institution but never got to see the end of it. And they fought for the end of slavery and knew that they might never have the opportunity to see it for themselves. But they knew that somebody someday would.’”
  • Jo-Ann Wallace, President & CEO, National Legal Aid and Defender Association, “NLADA Applauds Passage of Legislation to Establish Juneteenth as National Holiday”: “The NLADA community of civil legal aid attorneys, public defenders and client advocates are on the front lines battling the barriers to justice created by slavery’s horrific legacy in our nation. We should use this day to recommit ourselves to reckoning with that legacy, which still permeates the fabric of our society."  
 
Upcoming Trainings
 
Thursday, June 24, 2021, 3:00 − 5:00 pm: Attacking Historical Cell Site Analysis - Demystifying the “Science” of Cell Phone Tracking, presented by Phillip Hamilton, Attorney at Law; Christian Lassiter, Assistant Federal Public Defender for the District of Maryland; and Sidney Thaxter, Attorney and Head of Digital Forensics Unit, Criminal Defense Practice, The Bronx Defenders. There is no cost for this program. Register by June 23rd here.
 
July 26-30, 2021: 54th Annual Meeting and Conference
This year’s annual meeting and conference will be held virtually during the week of July 26th. We are finalizing program details and will be sending out the flyer and registration link very soon.
 
For questions about our training programs, email [email protected].