Consent-to-Search Probation Condition Lacked Grounds
The Second Department ordered the deletion of a probation condition requiring the defendant to consent to a probation officer’s search of his person, vehicle, or home as well as to the seizure of any drugs, weapons, or other contraband found. The underlying offense, attempted second-degree assault, arose from an attack on a cab driver and theft of a cell phone. The appellate court, after finding the unpreserved error was not precluded by a waiver of the right to appeal, noted that the defendant was a first-time offender who was unarmed at the time of the offense and was not assessed as needing alcohol or substance abuse treatment. On those facts, the condition “was not individually tailored in relation to the offense, and was not, therefore, reasonably related to the defendant’s rehabilitation, or necessary to ensure that the defendant will lead a law abiding life ….” People v Dranchuk, 2022 NY Slip Op 01312 (3/2/2022).
 
Implementation of Less is More
The state’s Less is More legislation became effective March 1, but as defenders have been warning for months, the implementation has been sluggish and incomplete. Assemblymember Phara Souffrant Forrest, a sponsor of the bill, said that DOCCS’s reading of the statute - which does not allow provisions of the act to apply to anyone arrested before March 1 - is “appalling and frankly, embarrassing” and an “attempt to fabricate a new precedent for the reading of bills.” On March 2, The Legal Aid Society filed a writ of habeas corpus in the Bronx for 91 clients who under the statute should have already been released by DOCCS.
 
In a press release, Lorraine McEvilley, Director of LAS’s Parole Revocation Defense Unit, said “DOCCS is simply violating the spirit and explicit intention of the transformative law by refusing to hold release hearings for everyone in its custody. If DOCCS is unwilling to afford our clients this due process, as clearly expressed by the law, then this litigation is the only remedy to protect our clients and their newly enshrined rights.”
 
The litigation mirrors the findings of the Less is More Coalition’s “Status Report on Implementation“ that was published in early March. Of particular note is the discussion on pages 6 through 7 of February’s new DOCCS administrative regulations and their lack of compliance with the new law: “[a]nyone who has been detained on a nontechnical violation and remains in custody on March must be afforded a recognizance hearing. Anyone has been detained on a technical violation and remains in custody on March 1 is entitled to release to continue the parole revocation process out of custody and in the community. Yet DOCCS officials have not publicly established procedures explaining how this will be accomplished.”
 
For more information on the mechanics of the legislation, see NYSDA’s Less is More Primer and reporting in The City. For a more technical analysis of DOCCS’s interpretation of the legislation, see this article in New York Focus. NYSDA will be offering training on Less is More on April 5th. For more information, see Association News below.
 
Second Dept. Reviews Law Regarding Parent vs. Nonparent in Child Custody Cases
The Second Department conducted a thorough analysis of the law surrounding custody proceedings involving a parent versus a non-parent. In Matter of Brittany N. v Anthony D., the court upheld the decision of a Suffolk County Family Court Judge who dismissed the mother’s petition for sole custody, filed against the paternal grandparents, who had been caring for the child for at least 24 months. Even though the appellate court ruled against the mother, the decision was quick to point out that it was based on the length of separation from the child, rather than the voluntary nature of the agreement to give grandparents custody. The law is clear that “‘[i]n a child custody dispute between a parent and a nonparent, the parent has a superior right to custody that cannot be denied unless the nonparent established that the parent has relinquished that right due to surrender, abandonment, persistent neglect, unfitness or other extraordinary circumstances’…. This rule applies even when, as here, a prior order awarding custody to the nonparent has been issued upon consent ….” [citations omitted]
 
Anyone defending a parent against a nonparent should familiarize themselves with the controlling Court of Appeals case, Bennett v Jeffreys, 40 NY2d 543 (1976). Since the nonparent has the burden of proving that they have standing, based on extraordinary circumstances, to proceed to a best interests determination, it is best practice to thoroughly review the petition and consider whether a motion to dismiss based on lack of standing is appropriate. If the motion fails, the attorney should request that a hearing on the issue of standing be held, before the issue of custody is considered.
 
Available: Latest Edition in CAL’s ITD Racial Justice Series
How can defenders use the Unified Court System’s video on implicit bias that is now shown to prospective jurors and/or the model Implicit Bias Instructions? The Center for Appellate Litigation (CAL) makes suggestions in the March edition of Issues to Develop at Trial (ITD). This is a follow-up to an edition published a year ago as part of the ITD Racial Justice Series, which has been noted in past News Picks, on integrating implicit bias concepts into voir dire. The recent suggestions include uncovering grounds to challenge prospective jurors for cause using the court system’s materials and integrating the dangers of implicit bias into summations.
 
As always, NYSDA thanks CAL for making this and other resources available to the defense community. CAL’s website includes an ITD archive. The January 2022 edition looked at some potential challenges relating to pandemic-related protocols and concerns in the course of trial.
 
COC Submitted Through EDDS Was Not “Filed” Upon Submission
A prosecution certificate of compliance (COC) submitted via the Electronic Document Delivery System (EDDS) on a Saturday was not “filed” on that date, a Kings County Supreme Court said on February 28. The COC filing could not have been approved or rejected by a court clerk until the following Monday, so that date would control for purposes of CPL 30.30. People v McDuffie is posted on NYSDA’s Discovery Reform Implementation webpage. Defenders are encouraged to send local decisions of note on discovery to the Backup Center by email to info@nysda.org.
 
In-Person Court Operations Increasing
The January ITD edition noted above remains timely as New York courts are said to be resuming full-scale operations that include “a full and normal complement of jury trials and other in-person hearings and proceedings.” The Chief Judge noted on February 28th that distancing requirements for both jury trials and grand jury proceedings had been eased from six feet to three feet, increasing available space for in-person proceedings.
 
As the New York legal system and the world continue adjusting to the evolving COVID-19 situation, NYSDA maintains its position that in-person proceedings are required at all critical stages and for all criminal court proceedings absent the consent of the person whose case is being heard. Defenders facing issues regarding in-person or virtual proceedings are encouraged to call the Backup Center.
 
Proceeding Virtually
Attorney Mark A. Berman, writing in a February 28th New York Law Journal column, discussed three issues raised by virtual proceedings. The cases examined were from the civil law setting, but may raise questions for criminal defenders as well. The three issues were holding a virtual trial in the absence of “a compelling reason” for it to be in person; using remote depositions to protect or assist people with certain disabilities while avoiding risks of taint; and considering effects on and of the “best evidence rule.” The cases were Perez v 1857 Walton Realty Corp. (Civil Ct, Bronx Co 3/24/2021); V.M. v M.M. (Supreme Ct, Kings Co 1/24/2022); and Waldman v Abt (Civil Ct, New York Co 12/21/2021).
 
Defenders considering the dangers of virtual court proceedings involving testimony may want to consider the findings in a recent article at 45 Law and Human Behavior 481. It offers this “Public Significance Statement” about the study being reported: “Low audio quality led people to evaluate witnesses more negatively and reduced their memory for presented evidence. Even when memory for key facts was held constant, poor audio quality led people to weight evidence less heavily in final judgments of guilt. These findings suggest several policy implications regarding the conditions under which remote testimony is presented in the courtroom and the critical importance of controlling for a high-quality acoustic experience in the physical courtroom more generally.” The article discusses a wide range of issues implicated by this and other studies, including whether there are similar problems with visual “disfluency,” sociocultural implications for disadvantaged trial participants, and potential similar problems in physical courtrooms.
 
IG Office to Focus on DOCCS, Gov Proposes Private Prison Labor
The state Inspector General (IG) has announced that an Attorney-in-Charge will be appointed for all matters relating to the Department of Corrections and Community Supervision (DOCCS). The announcement says that over half of the complaints the IG’s office receives concern DOCCS. The Albany Times Union, in reporting the announcement, noted the report, covered in the January 24th edition of News Picks, about improperly administered drug tests leading to potentially improper consequences for approximately 1,600 people in prison.
 
In other prison news, a long New York Focus article in February pointed out that the Governor’s proposed Executive Budget includes “a proposal that takes aim at low prison wages—not by paying them more in their current jobs, where they’re employed by the state, but by passing a constitutional amendment to overturn New York’s century-old ban on private employment of incarcerated people.”
 
Prison conditions matter to public defense clients. As the standards created by NYSDA’s Client Advisory Board note, clients want lawyers to accurately inform “the client who may be incarcerated about the incarceration process, including jail and prison programs” and to work “with the client to plan the future in terms of treatment while incarcerated, transitional issues, and reentry.”
 
Police Chiefs Association to Examine Responses to Mental Health Calls
The President of the NYS Association of Chiefs of Police (NYSACOP) wrote in that Association’s March 2022 magazine that their Board plans to create a committee seeking a solution, based on data, to the problems that arise in law enforcement responses to mental health crises. He said that they “would appreciate any success stories from communities that may have already found solutions on a local level.” Some parts of his column contributed to rather than de-escalated improvident rhetoric about police reform – he referred to “unilateral passage of ill-conceived, so-called reform legislation that was predicated on a false narrative and which has had an effect on the safety of communities all over the state” – and other articles in the issue definitely push back heavily on bail and discovery reform. But there were welcome points in the column:
 
“As law enforcement officers, we want to see compassionate care offered to persons in crisis. Employing a police response to these situations will certainly continue to happen, especially when a person is acting out, or exhibiting suicidal or homicidal behaviors. These are the types of calls to which police will inevitably be summoned. But mental illness is not a crime. The degree to which police are involved needs to be scrutinized.”
 
“NYAPRS Responds to OMH’s Guidance on Involuntary and Emergency Admissions”
On a related note, the NY Association of Psychiatric Rehabilitation Services (NYAPRS) recently responded to an NYS Office of Mental Health (OMH) Guidance as to “the Involuntary and Custodial Transportation of Individuals for Emergency Assessments and for Emergency and Involuntary Inpatient Psychiatric Admissions.” OMH sought to address the “misconception amongst both police as well as front-line mental health crisis intervention workers that a person with mental illness must present as ‘imminently dangerous’ in order to be removed from the community to a hospital or CPEP setting for evaluation, admission and treatment ….” NYAPRS expressed concern that encouraging application of the standards in question “might replace a more appropriate community response with a reflexive admission.”
 
Article Points to Crisis in Rural Family Court Defense
According to a recent article published in The Nation, in partnership with New York Focus, rural counties in New York State are experiencing a crisis in the family court defense community, and it is coming at the expense of poor families. “The number of family lawyers has precipitously declined in rural counties across New York over the past decade …. That has left rural parents with increasingly inadequate legal representation, which can lead to unwarranted foster care placements and even permanent loss of parental rights.” Many argue that the stakes in family court are even higher than in criminal court. Family court attorney Kate Falconer Woods, interviewed for the article, pointed out that jail time is bad enough, but obtaining an attorney belatedly in family court could mean “‘losing your child forever.’” The article contends that, “[b]etween 2015 and 2018, court records show, in 12 percent of proceedings where children in New York State were removed from the parent at an initial appearance and placed in foster care, the family had no lawyer present.” It also notes that “[t]here are more lawyers registered in New York state than in any other, but less than 4 percent of them practice in a rural area. Manhattan has 50.2 attorneys for every 1,000 residents, but no rural county has more than 3.6. The seven North Country counties have an average of 1.7 lawyers for every 1,000 residents.” These numbers are likely to get worse before they get better, as there are not enough younger attorneys to replace the current attorneys who are close to retirement and/or decide that they can no longer handle the challenging world of family defense.
 
NYSDA works with other organizations to address the problem by, for example, co-sponsoring career fairs and otherwise encouraging newer lawyers to consider rural practice. See the Public Defense Employer Resources webpage.
 
“Kyra’s Law” Inches Closer to Becoming Law
"Kyra’s Law" (A5398/S7425), currently in committee, is inching towards becoming law in New York. If enacted, it would amend Domestic Relations Law 240, adding a host of requirements and presumptions in any custody and visitation proceeding involving allegations of child abuse or domestic violence by a parent, regardless of whether the allegations involve the subject child. The provisions include, but are not limited, to:
 
  1. A requirement that the court must first consider allegations of child abuse or domestic violence before considering any other best interest factors, and hold a hearing on the allegations within 60 days of the filing of a petition.
  2. If the court finds a pattern of domestic violence or child abuse, then the court must award sole custody to the “non-offending parent” and must suspend visitation, or only award professionally supervised visitation, without court discretion.
  3. In any custody and visitation proceeding where such pattern is found, concerns regarding parental alienation are not admissible and may not be considered in a best interests determination.
 
NYSDA is monitoring the bill and will keep family defenders apprised.



Association News


NYSDA Marks Gideon Day/Public Defense Day with Advocacy
On the day before Gideon Day/National Public Defense Day, NYSDA spent time working with other organizations to respond to the news that the Governor has proposed a series of rollbacks to bail, discovery, speedy trial, and Raise the Age laws and an expansion of Kendra’s Law. NYSDA, along with the Chief Defenders Association of New York and the New York State Association of Criminal Defense Lawyers, released a statement opposing the proposals. The New York Law Journal reported on the statement. The following day, NYSDA shared the joint statement and statements by other organizations on Twitter, as well as statements recognizing the 59th anniversary of Gideon v Wainwright, which has more recently been referred to National Public Defense Day.
 
NYSDA thanks all those who work in the public defense community, including attorneys, social workers, investigators, parent advocates, administrative staff, paralegals, and others. And NYSDA is here to support you.
 
NYSDA Trainings
 
Wednesday, March 23, 2022, 12:00 – 1:30 pm: Application of the Interstate Compact on the Placement of Children (ICPC) in Article 10 Cases, with Chris Gottlieb, Co-Director, Family Defense Clinic, New York University School of Law, and Amy Mulzer, Senior Staff Attorney for Law and Appeals, Family Defense Practice, Brooklyn Defender Services. This program will provide 1.5 CLE hours in Professional Practice. There is no cost for this program. For details and program registration, click here.
 
Tuesday, March 29, 2022, 3:00 – 5:00 pm: Representing Youth in Family and Criminal Court Proceedings, Presented in collaboration with the Western New York Regional Immigration Assistance Center (WNY RIAC), this 2.0 credit hour program is for defense attorneys working with children and youth to understand various criminal and family court proceedings and resulting collateral consequences, including the available civil proceedings to assist unaccompanied migrant children and youths to gain legal immigration status. For details and program registration, click here.
 
Tuesday, April 5, 2022, 12:00 – 1:30 pm: Less is More: A Whole New World of Parole Revocation, with Norman Effman, Wyoming County Public Defender, Executive Director, Wyoming County-Attica Legal Aid Bureau; Lorraine McEvilley, Director, Parole Revocation Defense Unit, The Legal Aid Society; and Leah Nowotarski, Assistant Public Defender, Senior Parole Litigation Attorney, Wyoming County Public Defender Office. Program details and formal announcement coming soon, but registration is open, click here.
 
Tuesday, April 12, 2022, 1:00 – 4:30 pm: The Fundamentals of Litigating Family Offense Cases, with James Farrell, Assistant Public Defender, St. Lawrence County Public Defender’s Office; Linda Gehron, Attorney & Counselor; Sarah Holt, Assistant Conflict Defender, Monroe County Conflict Defender’s Office; Philip Katz, Partner, Fink & Katz; and Darius Lind, Assistant Public Defender, Monroe County Public Defender’s Office. Details and registration coming soon.