Release Orders to Assist in Advocacy
As you increase your advocacy for clients detained at various stages of their cases requesting release, we have compiled some release orders and a sample release motion that might be helpful. Other resources include the joint letter from the NYC institutional defender offices seeking furloughs for people held in NYC Department of Corrections custody. And an Onondaga County Bar Association, Assigned Counsel Program Defense Attorney Advisory on Intermittent Sentences, by Alan Rosenthal.

Please contact the Public Defense Backup Center if you need additional support. Thank you to the defenders and others who have been sharing these and many other resources. We will be adding additional resources to our coronavirus page, https://www.nysda.org/page/Coronavirus, to assist defenders in getting clients released from jail in their respective counties.

Legal Aid Has Provided Pleadings To Assist in Your Release Advocacy
The Legal Aid Society has graciously released the various mass writ pleadings they have filed this past week on behalf of detained pretrial, parole, juvenile and immigration clients. This is in an effort to assist attorneys outside of Legal Aid to obtain release for their own clients. The model pleadings can be viewed here: COVID Mass Writ Parole;  COVID Mass Writ Manhattan;  Memo of Law ISO Temporary Restraining Order;  Petition for Writ of Habeas Corpus and Complaint for Injunctive Relief. 
 
NYC Bar Resources on Release
NYC Bar has posted a valuable resource on the various mechanisms through which local, state and federal authorities can release incarcerated persons, with suggestions on how best to use them. Amidst the pandemic, the NYC Bar explains that these "tools will allow for the kind of quick and efficient action which must be taken to release individuals from prison." ( https://www.nycbar.org/media-listing/media/detail/legal-authority-to-release-certain-incarcerated-persons-prevent-covid-19-spread)
 
Legal Aid Sues ACS and The City on Behalf of Children
In an effort to obtain the release of children in custody, Legal Aid filed suit on March 25, 2020. "These youth are extremely vulnerable to infection by the virus and to its potentially devastating consequences," the papers state. The suit also cites "significant emotional harm" caused by an end to visits by family members.   https://thecity.nyc/2020/03/teens-sue-to-exit-detention-centers-as-coronavirus-closes-in.html

Executive Orders, Court Administrative Orders, and Other Critical Documents
NYSDA’s new coronavirus page, https://www.nysda.org/page/Coronavirus , includes links to many critical documents that govern the practice of law in New York during the current state of emergency. Documents include:

Executive Orders and Related Guidance

·          NYS Executive Order 202.8 , which provides, in part:

“In accordance with the directive of the Chief Judge of the State to limit court operations to essential matters during the pendency of the COVID-19 health crisis, any specific time limit for the commencement, filing, or service of any legal action, notice, motion, or other process or proceeding, as prescribed by the procedural laws of the state, including but not limited to the criminal procedure law, the family court act, the civil practice law and rules, the court of claims act, the surrogate’s court procedure act, and the uniform court acts, or by any other statute, local law, ordinance, order, rule, or regulation, or part thereof, is hereby tolled from the date of this executive order until April 19, 2020”

·          Empire State Development, Guidance on Essential Business or Entities under Executive Order 202.6
·          NYS Office of Indigent Legal Services,  Confirming Mandated Representation is an Essential Function Within the Meaning of the Executive Order , March 21, 2020

Court Orders and Notices

·          NY Unified Court System,  Alert on Limiting Court Filings , March 24, 2020
·          NYS Chief Administrative Judge  Administrative Order Ending Filings in All But Essential Matters  (AO/78/20), March 22, 2020
·          NYS Chief Administrative Judge Administrative Order Extending All Criminal and Civil Temporary Orders of Protection (AO/73/20), March 19, 2020

Corrections and Parole

·          New York Commission of Correction,  Chairman’s Memo re: Health Advisory: COVID-19 Guidance on Supervision of the Incarcerated Population , March 20, 2020 (posted March 24, 2020)
·          NYS Department of Corrections and Community Supervision, Suspension of In-Person Supervision , March 20, 2020 (“Effective Friday, March 20, 2020 at 5 PM, all in-person reports of individuals under state community supervision are suspended until April 17, 2020.”)
·          New York Commission of Correction,  Chairman’s Memo Re: Local Correctional Facility Staffing during the COVID-19 pandemic , March 18, 2020

Family Court and Child Welfare

·          NYS Office of Children and Family Services,  Guidance for Foster Care and Preventive Staff , March 20, 2020
·          NYC Administration for Children’s Services, Emergency Guidance for Foster Care Providers: Casework Contacts, Family Time and Family Team Conferences , Revised March 20, 2020
·          NYC Administration for Children’s Services, Guidance for Prevention Providers: Home Visits and Casework Contacts , March 18, 2020

The Threat of COVID-19 in Jails and Prisons
Discussion of how local jails can and should deal with the spread of COVID-19, began later than plans for other locations, but is now in high gear, at least by some. Prisons are also impacted, or course. DOCCS has posted screening protocols for facilities statewide, and information on suspensions, restrictions, and cancellations. An NYS Commission of Correction Chairman’s Memorandum issued Mar. 6, 2020 was followed by one on Mar. 18, 2020 and another on March 20 .

The Associated Press (AP) noted on March 7 that jails and prisons nationwide were on the alert, though there were no known reports of infection inside, while the outbreak had “suddenly exploded” in China’s prisons the week before. And an explosion is now in progress here. Defenders across the state and nation are seeking to get individual clients out before it’s too late; defenders and offices that have motions are encouraged to share them with NYSDA to assist others seeking clients’ release.

Defenders are also advocating—along with activists and others—for as many releases as possible. For example, two New York State Bar Association groups—the Committee on Mandated Representation and the Criminal Justice Section—passed a resolution urging the Governor to commute the sentences of all people currently confined in local jails serving sentences of a year or less, or, if the Governor chooses not to, for the State to exercise its power under Penal Law 70.40(2) to release those who have served at least 60 days of their definite jail sentence. As mentioned above, a group of institutional defenders have asked New York City to furlough all eligible people as soon as possible. The NYS Association of Criminal Defense Lawyers has urged the Governor to amend his Executive Order suspending deadlines to exclude CPL 190.80, 180.80, 170.70, and 30.30, so that detentions do not continue without review except for good cause shown. NYSDA and many other groups signed on in support of NYSACDL’s request.

Actions in other states provide hope for release of many people currently locked up, also noted elsewhere here. And activists are making clear that official failures to protect people who are incarcerated are being noted, as in a recent article in The Intercept.

Conditions for people who remain incarcerated are also a concern. New York City public defense offices have written   to DOCCS expressing concerns and proposing measures to protect clients incarcerated by the state.

Not to be forgotten amid the legitimate concerns about health—of clients, justice system workers, and communities—is that other dangers exist too, as noted for example in an article posted on Slate. These include temporary or permanent curtailment of rights, social isolation of people who are incarcerated, and more.

Incarcerated public defense clients, and those representing them, face significant challenges. NYSDA will provide information as it becomes available, and lawyers are encouraged to contact the Backup Center for information and assistance as issues arise.

Remedies to Consider for Clients in Jail for Civil Contempt
In continuing and related developments following up on “The Threat of COVID-19 in Jails and Prisons,” above, the NYC Mayor has announced a plan to release some people convicted of misdemeanors and non-violent felonies who have less than a year left on their sentence. New Jersey has announced a similar measure, with up to 1,000 people held in county jails being released. However, it is unclear if these recent moves will benefit individuals being held on findings of civil contempt. People held on civil contempt have not been convicted of a crime, but rather have been found to have violated a civil order, and can be sentenced to a maximum of 6 months. And people serving those sentences now are being exposed to the novel coronavirus and conditions under which, as a New Yorker article indicates, “ It Spreads Like Wildfire ”; social distancing in jails is next to impossible.

Attorneys with clients being held on civil contempt (failure to pay child support, failure to abide by an order of disposition, etc.) should consider making an application to obtain the client’s early release by citing the current public health crisis. This can be done by filing a Writ of Habeas Corpus in Supreme Court, the requirements for which can be found in CPLR article 70 , or a Motion to Renew under CPLR 2221 , which allows the court to reconsider an order based upon a demonstration that there has been a change in the law. The Executive Order from Governor Cuomo declaring a “disaster emergency in the state of New York” due to the coronavirus may be considered a change in the law, or at least provide a persuasive argument as to why a client should be released. For further information on how to file a writ or a motion, or for any other legal questions or concerns around civil contempt sentences, please contact NYSDA’s Public Defense Backup Center. 

COVID-19 Measures Can Impact Cases/Clients with Mental Health Issues
Yet another set of public defense cases and clients that can be affected by COVID-19 measures are those with mental health issues. This includes individuals with criminal matters who are being held in psychiatric facilities, whether under CPL article 730 provisions governing determination of fitness to proceed, the Sex Offender Management and Treatment Act (SOMTA), (Mental Hygiene Law [MHL] article 10), or others. Office of Mental Health Guidance Documents on COVID-19 can be found at  https://omh.ny.gov/omhweb/guidance/ . The  guidance for behavior health providers  covers, among other things, procedures  dealing with  "visitors to any program setting …." That guidance also has instructions for “ [o] utpatient treatment and support programs, including mobile and home and community based services.” Other documents on the guidance site include one on "Use of Telemental Health” during the emergency.
 
Also, of course, the suspension of civil trials can impact those with pending article 10 proceedings.

Proposed OCFS Rule on Host Families- Deadline for Comments is March 29
The Office of Children and Family Services (OCFS) has introduced proposed regulations which if adopted would, “establish standards for the approval and administration of host family homes.” If approved, the regulations would amend 18 NYCRR 444.1 (and add new sections 444.2-442.15), giving parents the option of placing their children with an approved host family pursuant to a voluntary placement agreement for up to 12 months and in some cases longer than that. The agreement would have to be signed by the parent(s) and approved by a supervisory agency. Certain details remain unclear, such as whether or not parents would have the ability to have their children returned prior to the expiration of the agreed upon period.

This proposal is being heavily advocated by the faith-based Safe Families for Children as a kind of respite for families in need. The OCFS Notice of Rulemaking (see p.2) notes that it “ has been in contact with Safe Families for Children, a national organization that administers programs similar to those to be established by the proposed regulations.” According to the Safe Families for Children website , its vision is to “creat[e] a world where children are safe and families transformed through radically compassionate communities.” In response to the proposed rule by OCFS, Safe Families for Children posted on their website , “After 3 years of prayer, coalition building and government collaboration, we are so excited to announce that … (OCFS) has posted the proposed amendment … that would approve host family homes! We are one giant step closer to being able to support vulnerable and isolated families by wrapping parents in a circle of support that will soon include the option for temporary hosting their children.” 

Some in the family defense community argue that this is an unnecessary rule change, as parents already have the ability to make alternative living arrangements for their children. Many are concerned that this would turn into a “back door” foster care system, to be used by child welfare agencies to convince vulnerable parents to place their children with strangers when insufficient evidence exists to bring removal proceedings pursuant Family Court Act Article 10. Attorney David J. Lansner states “OCFS wants to put children in foster care without reasonable efforts, court approval, or counsel for the parties, and no clear cut path for parents to get their children back prior to the agreed upon time, should they change their minds about the placement.”

To submit comments on this proposed rule change, OCFS at regcomments@ocfs.ny.gov , until the expiration of the 60-day comment period on March 29, 2020 . Note: NYSDA has confirmed with the Department of State that, at this time, the State has not extended the comment period for proposed regulations.

Association News

Update on NYSDA Public Defense Backup Center and Veterans Defense Program Operations
At this time, our Public Defense Backup Center and Veterans Defense Program staff are working remotely. To reach the Backup Center Staff, you can call our main number (518-465-3524) or send a message through our website contact form, https://www.nysda.org/general/?type=CONTACT , or our general email address, info@nysda.org . At this time, not all staff are able to have calls forwarded to their homes. You can always leave a message on the general voicemail at our main number or use the spell by name directory to access the voicemail of individual staff members and the messages will be routed to the correct staff member.

Our Public Defense Case Management System (PDCMS) staff can be reached at (518) 465-3524, Option 3, or pdcmssupport@nysda.org.

VDP staff contact information is available at https://www.nysda.org/page/VDPWelcome .

We hope that you and your families and colleagues are staying safe and healthy at this incredibly difficult time.


NYSDA Training Update
With the arrival of COVID-19 distancing rules in place, many are aware that we have had to postpone upcoming live training events through April 2020, with decisions yet to be made about programs in May and beyond. To alleviate some of the hardship, NYSDA’s training team is exploring the development of web-based training for which CLE credits may be earned. We are actively working on a number of presentations that we will strive to roll out in April. We will also be making non-CLE information and learning videos of recent presentations available to view online. A list of available topics and procedures to access them will be announced in the next issue of News Picks. Please do not hesitate to contact the Backup Center for information and electronic materials as we move forward. Please direct questions and requests to our Training Manager Megan O’Toole at MOToole@nysda.org . Thank you for your patience and we look forward to bringing you more programs soon.