Senate and Assembly One-House Budgets Differ Significantly from Hochul Priorities

The Senate and Assembly issued their budget plans this month, neither including the Governor’s proposal to further roll back the state’s 2020 bail and discovery reforms. Hochul is pushing to eliminate, for bail eligible charges, the return to court standard, as well as the requirement that judges impose the “least restrictive” alternative, reversing decades-old protections. However, Senate Leader Andrea Stewart Cousins pointed to a recent study by John Jay’s College of Criminal Justice that shows bail reform has lowered recidivism rates. In a March 22nd press conference, Hochul acknowledged that data, but argued that re-arrest rates for people charged with violent felonies have risen.

There are other key differences between the budget proposals as well. The Senate’s includes the Clean Slate Act, while the Assembly’s and the Governor’s do not. Last year, Hochul’s watered down version of the Act was ultimately too far from the Legislature’s to find a compromise. (For more on the renewed push behind Clean Slate, see this article from LoHud). Hochul’s budget also would criminalize several drugs with similar effects to fentanyl, a proposal neither chamber accepted.

Regarding funding, Hochul’s proposal includes $40 million to district attorneys for further discovery law implementation, and another $47 million for additional support to prosecutors, with no similar funding for defenders. The Assembly’s plan includes even more prosecutorial funding, but matches it for defender offices (over $100 million for discovery implementation on both sides), and also offered additional funds for defense services. The Senate accepted the Governor’s proposed funding for prosecutors and added an equal amount for defense services.

Each of the proposed budgets calls for increased assigned counsel rates, but do so in markedly different ways. The Governor and the Senate proposals call for different rates downstate and upstate – for Hochul, $158 per hour downstate and $119 upstate, with the Senate calling for $180 downstate and $158 upstate, an amount that won’t be reached until 2028. The Assembly on the other hand proposes a rate of $164 across the board. The proposed funding mechanism is also different; the Governor’s plan offers no state funding for the raise, while the Senate apportions $25 million for it and the Assembly $198 million.

On March 22nd, NYSDA’s Executive Director joined defenders from the Chief Defenders Association of New York and the New York State Association of Criminal Defense Lawyers to advocate for public defense funding. At a press conference that day, the groups addressed several key areas where funding is needed: assigned counsel rates; funding for defense discovery and recruitment and retention programs; family court funding (discussed below); and funding for NYSDA’s Backup Center and Veterans Defense Program. Coverage of the press conference appeared in the New York Law Journal, the Times Union, and the Watertown Daily Times. As reported by the Times Union, defenders are supporting the Assembly plan that calls for a single base rate increase across the state, with the caveat that the Assembly’s proposal fails to include a regular cost of living adjustment, which is necessary to avoid yearly advocacy on the rates.

For a detailed analysis of both the Assembly and Senate proposed budgets, along with comparisons to last year’s final budget, please see NYSDA’s summary here.

Family Defense Needs More Funding Now

State Senator Brad Holyman-Sigal’s recent op-ed in the online publication, City & State NY, posed the question: “Low-income parents desperately need lawyers in Family Court. We have the money. What’s Albany waiting for?” Holyman-Sigal is advocating for increased funding for parental representation. This is an area of mandated representation that is woefully underfunded by the State, especially when compared to its criminal counterpart. He is supporting the Indigent Legal Services request for $28 million to be directed towards parental representation, including for additional attorneys, social workers, and parent advocates. NYSDA is strongly advocating for this funding, which is significantly more than the $4.5 million that was appropriated in last year’s budget and is in the Governor’s proposed budget. Holyman-Sigal concludes, “It’s past time for New York to heed the call for increased State funding for parental representation. Doing so is a matter of fundamental fairness and racial justice. It’s also a vital step to maintaining the integrity and well-being of all families in New York.” It is worth noting that while this year brings the 60th anniversary of Gideon (see Associaion News, below), guaranteeing the right to counsel in criminal cases, it is the also the 51st anniversary of the Ella B. decision, guaranteeing the right to counsel in NYS for certain family court cases.

Court of Appeals Update from CAL Includes Bruen Cases

The New York City Center for Appellate Litigation (CAL) generously shares its bi-monthly Court of Appeals Update newsletter with the defender community. The latest issue includes a number of firearms cases that are waiting to be scheduled:

• People v Pastrana: “Whether Penal Law §265.03(3)—which criminalizes the possession of a firearm in a public place, a right that New York State Rifle & Pistol Association, Inc. v. Bruen found protected by the Second Amendment—is unconstitutional.”
• People v Ramon Cabrera: “Whether, in light of Bruen, the police lacked reasonable suspicion to seize and arrest the defendant where he had an out-of-State license for the guns in his trunk,” “[w]hether the defendant’s conviction must be reversed and dismissed as unconstitutional in light of Bruen,” and [w]hether, in light of Bruen’s holding placing in-home possession on the same constitutional footing as public carry, the sentencing disparities the Penal Law draws between in-home possession and public carry are unconstitutional and render the sentence for possession of a loaded firearm outside home or place of business illegal.”
• People v Jose M. Rivera: “Whether, in light of Bruen’s holding that the Second Amendment protects public possession the same as in-home possession, the eligible youth distinction for YO eligibility between possessing a loaded firearm inside the home (which is non-violent and not an armed felony offense) and possessing a gun outside the home (an armed felony offense requiring mitigating circumstances) is no longer tenable” and [w]hether possessing a gun outside the home for protection purposes is necessarily a mitigating circumstance ‘bearing directly on the manner in which the crime was committed’ under CPL § 720.10(3).”
• People v George Garcia: “Whether both Penal Law 265.03(3) (which criminalizes the possession of a firearm in public, a right that the USSC found protected by the Second Amendment in Bruen) and Penal Law 265.03 (1)(b) (which criminalizes possession with intent to use unlawfully) are unconstitutional.”
• People v Sebastian Telfairin: “in gun possession prosecution, admissibility under Molineux’s “state of mind exception” of defendant’s possession of different guns more than 10 years earlier; (2) constitutionality of defendant’s gun possession conviction under Bruen where defendant had lawfully purchased and registered the gun in Florida.”

Firearm issues under Bruen are also featured in some of CAL’s newsletter focused on innovative strategies for effective trial practice, Issues to Develop at Trial. As always, NYSDA thanks CAL for making its resources available.

Finding of Derivative Neglect is Not a Slam Dunk

In the Matter of C.L., 2023 NY Slip Op 01260 (3/14/2023), the First Department reversed a derivative neglect finding of the Bronx Family Court against the respondent/father. While the First Department found sufficient evidence to support the neglect finding for inflicting excessive corporal punishment on one child, the record lacked evidence to support such a finding as to another child in the household. In its decision the appellate court stated, “Family Court’s determination that respondent derivatively neglected his son J.L. was not supported by a preponderance of the evidence. The finding was based entirely on the excessive corporal punishment of the daughter, which took place outside the home. There was no evidence that respondent’s excessive corporal punishment was ever directed at the older child, who was 14 years old at the time, or that he was even aware of the abuse. Furthermore, there was no evidence that the son was at risk of becoming impaired, as he continued to reside with respondent after the petitions were filed.” While it is often the case that judges make reflexive derivative neglect findings, it is important to remember that each case is different. Family Court Staff Attorney, Kim Bode, is available at kbode@nysda.org to answer questions or to help brainstorm individual cases.

No Electronic Monitoring in Columbia County

According to a letter sent to the County Board of Supervisors from judicial candidate Brian Herman, Columbia County has not implemented electronic monitoring, Hudson Valley 360 reported. As part of the 2020 bail reforms, electronic monitoring is an option for certain cases in every county, though there is no mandate that it be used.

Also pursuant to the 2020 reforms, OCA must report on certain statistical elements of the pretrial process. Their “Pretrial Services Annual Report“ can be a useful advocacy tool to show how often certain non-monetary conditions are imposed and how infrequent revocations actually are, including for clients released on electronic monitoring.

Chief Judge Appointment Updates

City and State published an in-depth piece analyzing the campaign to fight Hector LaSalle’s nomination to be the chief judge to the state’s Court of Appeals. The piece builds on reporting, starting in August, documenting the evolution of the groups involved in the “Stop Singas” campaign as they began to coalesce against LaSalle.

City and State concurrently covered the state of the appellate courts in a world without a chief judge. Former New York City corporation counsel Michael Cardozo is quoted as saying that “[t]he courts aren’t going to do anything until they know who their new leadership is,” adding that, “There’s total paralysis.”

On Friday, the Commission on Judicial Nomination sent the Governor a new list of 7 candidates for the Chief Judge position. Two of the candidates were also on the last list, Hon. Anthony Cannataro (Court of Appeals Associate Judge and Acting Chief Judge) and Corey L. Stoughton (Attorney-in-Charge, Special Litigation and Law Reform, The Legal Aid Society). The other five are Hon. Elizabeth A. Garry (Presiding Justice, Third Department); Caitlin J. Halligan (attorney at Selendy Gay Elsberg PLLC); Hon. Shirley Troutman (Court of Appeals Associate Judge); Hon Gerald J. Whalen (Presiding Justice, Fourth Department); and Hon. Rowan D. Wilson (Court of Appeals Associate Justice). As noted in the accompanying press release, the Governor must make her appointment from the list no sooner than April 8th and no later than April 23rd.

Court System Releases 2022 Report on Equal Justice in the NYS Courts

The Acting Chief Judge announced “the release of a report updating the achievements of the court system’s Equal Justice Initiative” on March 8th. The report, Equal Justice in the New York State Courts: 2022 Year in Review, highlights efforts “to promote diversity and inclusiveness on the bench and in the courts’ workforce and foster a safe, welcoming and bias-free environment, consistent with the recommendations of the Special Adviser on Equal Justice in the Courts, Secretary Jeh Johnson,” according to the announcement.

Public defense—specifically the need for an increase in the compensation for assigned counsel in criminal and family courts—received mention in the report as a funding issue that affects the work of the courts but is outside the court’s control. The report asserts that ensuring “high-quality legal representation” for financially eligible clients “is a high priority for the Office of Justice Initiatives.” A similarly concise statement was made in the prior report (2020-2021) issued in the wake of Jeh Johnson’s recommendations. That follow-up report asserted that the Unified Court System would continue to advocate for “[i]ncreased 18-B counsel rates for attorneys serving in criminal and family courts to ensure availability and quality legal representation for vastly under-served litigants of color.”

The new report notes many steps taken since the Johnson report, including some begun before 2022. The section on the Office of the Inspector General says that it “engaged in a robust informational campaign to explain and publicize its functions” resulting in “a 300 percent increase in matters brought to the IG’s office.” The IG also has a Multi-Year Perspective Dashboard where charts can be viewed showing, for example, a summary of the Bias Matters Unit’s complaints received and open investigations. The Division of Human Resources has added resources meant to promote open positions and reduce application barriers. Uniformed court officers must now wear nameplates on duty to foster trust and accountability, and a new court officer’s manual is being developed that will include anti-bias materials. A sizable portion of the report focuses on the creation and work of Equal Justice Committees in every Judicial District. And the Virtual Court Access Network (VCAN) is touted as bridging the digital divide by providing virtual access to courts from community-based locations.

Defenders are encouraged to share with the Backup Center their thoughts about ways to work toward equal justice for their clients in the criminal and family legal systems, thereby improving those systems for everyone.

Mail and Packages Will Not Be Banned at Rikers Island

After NYC Correction Commissioner Louis Molina pushed to ban physical mail packages in NYC jails allegedly due to fentanyl coming into Rikers Island soaked into paper, the Board of Correction has rejected this effort. While the Department of Correction has pushed the blame on people held at Rikers, advocates have noted that correction officers have been repeatedly arrested for drug smuggling at the Rikers facilities. The Gothamist article linked above mentioned that correction officers at the jail facilities on Rikers Island are not scanned for contraband like visitors are, but as the Daily News reports, officers will now be randomly selected for body scans as they enter one of the jails on Rikers Island. Molina’s push to further isolate inmates at Rikers comes on the heels of last month’s news that, under a new contract, inmate electronic tablets will be used to surveil communications and collect fees for some types of messaging. The Appeal featured an impassioned plea from a person formerly detained at Rikers about how much of a lifeline paper mail is in prison.

NYC Corrections Officers Too Helpful to ICE

The Gothamist reported in mid-February that New York City “correction officers, who are largely barred from cooperating with federal immigration officials, on at least several occasions in recent years went above and beyond to coordinate with U.S. Immigration and Customs Enforcement [ICE] agents in the deportation of incarcerated immigrants, according to a trove of emails unveiled during a City Council hearing on Wednesday.” Communicating with ICE agents to schedule release times to facilitate ICE pickups arguably violates a 2014 local law under which “officers are generally not allowed to ‘expend time’ or ‘resources’ to share official department information about people in custody with federal immigration authorities, unless the person has been convicted of a ‘violent or serious’ crime or is on a terrorist watch list.”

Any similar problems upstate seem to have remained out of media scrutiny. Public defenders are reminded of the need to determine a client’s citizenship status and consider that their immigration status may affect their case or their place and conditions of confinement. As always, NYSDA urges lawyers to consult with their Regional Immigration Assistance Center (list available on http://www.nysda.org/ and on the RIAC General Information webpage of the Indigent Legal Services Office).

Final NIST Report on Bitemark Analysis Reveals Flimsy Methods & Lack of Consensus

This month, the National Institute of Standards and Technology (NIST) published its final report on bitemark analysis on human skin. Despite longstanding use of this technique, NIST found that the main tenets of this once revered “science” lack support. NIST also noted a lack of consensus among practitioners in interpreting data and their ideas on how to move forward in the field. Critics have identified lack of uniqueness and reliability as obstacles to considering bitemark analysis a reliable forensic technique. Transfer and persistence of bitemarks was also investigated because even bitemarks from the same person on the same person have intra-individual variation. Another glaring issue found was although there are several standards-developing organizations in the broader field of forensic odontology, there are none specifically for bitemark analysis.

One of the more revealing takeaways of the study was that “[f]orensic bitemark analysis lacks a sufficient scientific foundation because the three key premises of the field are not supported by the data. First, human anterior dental patterns have not been shown to be unique at the individual level. Second, those patterns are not accurately transferred to human skin consistently. Third, it has not been shown that defining characteristics of that pattern can be accurately analyzed to exclude or not exclude individuals as the source of a bitemark.” 

We previously covered bitemark analysis news in our Oct. 31, 2022 and Dec. 29, 2022 News Picks issues. For more information on the subject see the supplemental materials from NIST and a brief video from the Center for Integrity in Forensic Science intended to educate potential jurors about the history and impact of bitemark evidence.

If bitemark analysis plays a role in your case, you should consult with an expert witness and consider a possible admissibility challenge based on these studies and many others published in recent years. Defenders with questions about cases involving forensic evidence are encouraged to contact the Public Defense Backup Center’s Discovery and Forensic Support Unit at info@nysda.org, 518-465-3524, or using our contact form. 

Association News

NYSDA’s Mission Shaped its Gideon Day Observances

The 60th anniversary of Gideon v Wainwright, Mar. 18, 2023, recognized as Gideon Day by a NYSDA Board of Directors resolution in January, provided an opportunity to celebrate the right to counsel. NYSDA’s statement issued as part of the commemoration called for funding and policies necessary to expand the quality and scope of public defense, commensurate with our mission. We thank State Senator Brad Hoylman-Sigal for sponsoring a Gideon Day resolution and for presenting it at the March 22nd press conference during Public Defense Advocacy Day. We also thank the Senate for passing the resolution and thank all the legislators and allies who support public defense in the current budget negotiations and throughout the year. And we again thank our members, who received Gideon Day greetings from us on the 18th.

Upcoming Training Programs

Friday, March 31, 2023, 12:00 – 2:00 pm: Successful Education Advocacy: Strategies for Family Defenders with Melissa Accomando, Senior Attorney & Team Leader, Education Practice at Brooklyn Defender Services, and Carolyn Lipp, Senior Attorney, Education Practice at Brooklyn Defender Services. This program will address how identifying educational issues and successfully advocating on behalf of clients can lead to positive outcomes in family court. Various family court-related educational issues will be covered, including educational neglect, school stability for children in foster care, and protecting parents’ rights when their children are placed in foster care or otherwise separated from them. The deadline for registration is Thursday, March 30th. Details and information are available here.

Tuesday, April 4, 2023, 11:30 – 1:00 pm: What Parent Attorneys Need to Know About the Parental Equity Act and Family Court Act 1017 with Chris Gottlieb, Director, Family Defense Clinic at New York University School of Law, and Amy Mulzer, Senior Staff Attorney for Law and Appeals, Family Defense Practice at Brooklyn Defender Services. This program will cover the recently passed Parental Equity Act and how its implementation will affect both respondent and non-respondent parents in neglect, abuse, and termination of parental rights cases. Additionally, the presenters will discuss other concerns and considerations related to representing non-respondent parents. Details and registration information are available here.

Thursday, April 6, 2023, 1:00 – 2:30 pm: Three-Part Technology Training Series: Part One: Video Evidence: Basic and Advanced Review Techniques with Brian Cummings, Staff Attorney, Discovery and Forensic Support Unit, New York State Defenders Association. This CLE will introduce attendees to VLC Media Player, a free and powerful video program. Instruction will include an explanation of important video attributes, tips for working with difficult surveillance videos, and examples of video enhancements. Legal arguments and case law, addressing different aspects of video use in court, will be included throughout each section. The CLE will begin with simple step-by-step instructions and end with complex examples that require expert assistance. Details and registration information are available here.

Thursday, April 20, 2023, 3:00 – 4:40 pm: Incapacitated to Stand Trial and Stuck in Jail – Now What? with Julie Keegan, Director, Protection & Advocacy for Individuals with IDD/ADD (PADD) Program, Disability Rights of New York (DRNY); Ben Taylor, Senior Staff Attorney, PADD Program; and Sheila Shea, Director, Mental Hygiene Legal Service, Appellate Division, Third Department. This program will review the fundamentals of CPL article 730 practice and strategies for helping clients trapped in incarcerative settings. Details and registration information are available here.

April 21, 2023, 1:00 – 2:30 pm: Technology Training Series: Part Two: Metadata: How to View and Interpret Hidden Information with Brian Cummings, Staff Attorney, Discovery and Forensic Support Unit, New York State Defenders Association. This CLE shows attorneys how to uncover, preserve, and use metadata in legal arguments. The presentation will focus on common digital discovery files (photos, videos, etc.) but will also touch on complicated forms of metadata created by mobile phones, networks, vehicles, and more. The CLE covers technical details of a complex subject and assumes a basic understanding of digital files. Details and registration information are available here. 

Thursday, April 27, 2023, 1:15 – 2:45 pm: New Developments in Challenging Police Pretext Stops with Yung-Mi Lee, Legal Director, Brooklyn Defender Services, and Jill Paperno, Senior Civil Rights Litigator, Civil Rights Practice Group, Empire Justice Center. Details and registration information are available here. 

Thursday May 4, 2023, 1:00 – 2:30 pm: Technology Training Series: Part Three: Computer Hardware for Attorneys: Choosing the Right Tools for the Job with Brian Cummings, Staff Attorney, Discovery and Forensic Support Unit, New York State Defenders Association. This CLE covers the technical specifications an attorney should consider when choosing a computer or other tools for working with digital evidence. Investing in the right technology can save time, money, and headaches down the road. The material is geared toward typical computer users but will also touch on newer technology and specific computer components that will likely be unfamiliar to some viewers. Details and registration information are available here.

Save the Date: Friday, May 12, 2023, 2:30 – 4:30 pm: Research-informed Domestic Violence Defense: An Overview with Charles Dresow, Attorney at Law, Ragghianti Freitas LLP, and John Hamel, Ph.D., LCSW. This program will present evidence-based and viable strategic approaches to representing individuals charged with domestic violence offenses. Details and registration information coming soon.

Sunday, June 11 – Friday June 16, 2023: NYSDA Defender Institute Basic Trial Skills Program. The annual Basic Trial Skills Program will return in-residence to Skidmore College in Saratoga Springs. Anyone interested in applying for the program should contact NYSDA at training@nysda.org.

56th Annual Meeting and Conference: July 30-August 1, 2023. The Annual Meeting and Conference will be held at the Saratoga Hilton in downtown Saratoga Springs. We are proud to expand our programming by offering training and networking opportunities for criminal defense and family defense attorneys and members of the defense team. Hotel reservations may now be made at https://book.passkey.com/go/NYSDefendersAssn23.

The conference rate is $201 for a standard room. There will be a Welcome Reception Sunday evening, July 30, and the CLE conference will be held Monday, July 31, and Tuesday, August 1. Also, on July 31, we will have our annual meeting of the membership in the morning and our awards dinner in the evening. Program overview and registration details will be available soon. We look forward to seeing you in Saratoga this summer!