Court of Appeals Update
The Center for Appellate Litigation (CAL) regularly produces an update of significant cases pending before the NYS Court of Appeals. Attorney-in-Charge Robert S. Dean recently sent out the most recent edition, saying: “Special April edition, since there is so much new to report.” Cases awaiting decision after argument include those raising the following questions: did the court err by denying a Frye hearing on use of DNA forensic statistical tool (FST) error and was evidence underlying the FST Brady material? Was a ruling after a Frye hearing on the DNA program TrueAllele erroneous because source code was not provided and was denial of access to that code a violation of the Confrontation Clause? Other issues range across whether a non-citizen was denied the right to a jury trial; the definition of “accost” for the crime of fraudulent accosting; Batson and other issues; retroactive application of CPL 30.30 reforms to traffic infractions; application of rape-shield provisions to lab report supporting an alternative explanation for injuries; was an accusatory instrument defective for lack of specificity as to the synthetic cannabinoid possessed?; and many more!

NYSDA thanks CAL for sharing this resource and others, such as its Issues to Develop at Trial, including a Racial Justice Series, as noted in the March 22 edition of News Picks.
 
The two cases that were listed in the edition as awaiting decision were decided last week, both of which found against the defendant. In People v Easley, the Court held that “[i]t was an abuse of discretion for the trial court to admit the results of DNA analysis conducted using the Forensic Statistical Tool without first holding a Frye hearing ....” Unfortunately, the Court then concluded that the error was harmless. Judge Rivera wrote a dissenting opinion, in which Judges Wilson and Troutman concurred. The dissent concluded that “[t]he evidence of defendant's guilt of criminal possession of a weapon was not overwhelming and the FST DNA evidence was the strongest evidence of possession against him.”
 
In People v Wakefield, the Court started its decision as follows:
 
"This appeal primarily concerns the admissibility of DNA mixture interpretation evidence generated by the TrueAllele Casework System. We conclude that Supreme Court did not abuse its discretion in finding, following a Frye hearing, that TrueAllele's use of the continuous probabilistic genotyping approach to generate a statistical likelihood ratio—including the use of peak data below the stochastic threshold—of a DNA genotype is generally accepted in the relevant scientific community. We also hold that there was no error in the court's denial of defendant's request for discovery of the TrueAllele software source code in connection with the Frye hearing or for the purpose of his Sixth Amendment right to confront the witness against him at trial."
 
Judge Rivera, joined by Judges Wilson and Troutman, concurred in the result in Wakefield.
 
In a third decision issued on the same day, People v Dawson, the Court concluded that the appellant “did not unequivocally invoke his right to counsel while in custody.” Judge Wilson, joined by Judge Rivera, dissented. “It is clear from videotaped record of the interrogation that Mr. Dawson unequivocally and repeatedly asked to contact his lawyer. Instead, he was never given the chance to do so, and eventually consented to waive his Miranda rights.” Noting that the video of the interrogation was part of a sealed record, he provided a transcript of the video. Judge Wilson went on: “The majority's holding vitiates the privilege against self-incrimination, right to counsel and due process that our Court has scrupulously guarded through protections deliberately greater than those afforded under the federal Constitution. Regrettably, today's decision is merely the latest in a string in which we disregard the clear meaning of a defendant's words by applying a standard of verbal precision even jurists find hard to meet.”
 
State Commission of Correction Issues HALT Rules
As a follow up to our April 1st News Picks item on HALT, the April 13th issue of the NYS Register contains the official publication of the State Commission of Correction (SCOC) announcement of a rule to implement the Humane Alternatives to Long-Term Solitary Confinement (HALT) Act (L 2021, ch 93). The rule was adopted on an emergency basis effective March 31, 2022 (HALT’s effective date) and, while it will expire on June 26, 2022, it also serves as a proposed rule. Public Comment on this rule will be accepted until 60 days after publication. The notice about this rule is posted at https://scoc.ny.gov/, including links to both a summary and the text of the rule. Defenders who submit comments are encouraged to copy them to the Backup Center.
 
NYS Bar Association Addresses Racial Justice and Child Welfare
The New York State Bar Association’s House of Delegates approved in early April a report from the Committee on Families and the Law on racial justice and the so-called child welfare system. While recognizing the need for government intervention when parental behavior results in or threatens substantial harm to children, the report addresses “the ongoing damage to Black families from inappropriate government intervention.” [Footnote omitted.] The report discusses data that supports its numerous painful conclusions. Among those: “[t]he expansion of mandatory reporting to include poverty framed as 'neglect' has had a major impact on the surveillance of Black families and the removal of Black children into the foster system.” The report points out efforts to promote racial justice, including the promulgation of the Office of Indigent Legal Services 2015 standards for parental representation and the State Bar’s standards for mandated representation; the creation of the Commission on Parental Legal Representation and its interim report; and lawsuits, like one spearheaded by The Legal Aid Society challenging overly restrictive bars on relatives becoming foster parents due to allegations in criminal or family proceedings of criminal behavior or abuse or neglect.
 
As a Times Union article notes, the report recommends “changes that the child welfare system could make, including assisting families with basic needs like employment, housing and food.” NYSDA, which continues its own commitment to Black lives and to changing the family regulation system, commends the NYS Bar Association for this report.
 
AG’s Law Enforcement Misconduct Investigative Office Issues Report
Among New York’s efforts to address racism in the criminal legal system in the wake of George Floyd’s murder by a police officer in Minneapolis was the Legislature’s creation of a new entity within the State Office of the Attorney General (OAG). (L 2020, ch 95). The Law Enforcement Misconduct Investigative Office (LEMIO) has issued its first annual report. Dated Dec. 31, 2021, the report is available here. Basic information about LEMIO is presented on the website.
 
Members of the public and personnel of covered agencies can use an online portal to report misconduct to LEMIO. During its first year, LEMIO “initiated several investigations into potential misconduct” and “sued the New York City Police Department (‘NYPD’) in federal court seeking to end the department’s pattern of using excessive force and false arrests against New Yorkers during First Amendment-protected protests ….” Legislative recommendations by LEMIO included in the report:
  • establish statewide data reporting procedures that would, among other things, “improve public confidence in policing and help detect and protect against racial and other forms of bias”;
  • facilitate civilian oversight;
  • authorize access to sealed records by civilian oversight agencies and the OAG; and
  • develop alternate public health approaches for people in crisis.
 
The report mentions that some local changes were made “through the individualized reviews of local law enforcement agencies required by the Executive Order 203 Police Reform and Reinvention Collaborative Plan.” NYSDA created a webpage with information on EO 203 developments, announced in News Picks in September 2020; the new LEMIO report is now posted there. As an item about EO 203 in the Aug. 10, 2021, edition of News Picks noted, “Not Every Police Department in NY Has Been Reimagined.” Given the ongoing importance of addressing the problems, particularly racism, that led to EO 203 and the creation of LEMIO, defenders are encouraged to contact the Backup Center with questions or information about local developments.
 
State Police Delaying Disclosure of Disciplinary Records
Another 2020 effort to uncover and end racism in policing, the repeal of the statute that had kept police disciplinary records hidden (Civil Rights Law 50-a), continues to face roadblocks in implementation. As reported in early April by the Daily Freeman, the State Police have been delaying Freedom of Information Law (FOIL) requests for records regarding Troop F, Zone 3, which patrols in Ulster and Greene counties, even while local police agencies in the region complied.
 
Defenders are reminded that NYSDA has materials about 50-a on its website at Law Enforcement Disciplinary Records, as well as information about Law Enforcement FOIL. Please contact the Backup Center with questions and to provide information about local developments on these issues.
 
Algorithm Use in Child Neglect Systems is Concerning
An Associated Press article on April 29th described a growing trend across the nation of so-called child welfare agencies using statistical calculation tools to “help social workers decide which families will have to endure the rigors of the child welfare system, and which will not.” It also reported new research on one such algorithm, which “showed a pattern of flagging a disproportionate number of Black children for a ‘mandatory’ neglect investigation, when compared with white children.” Data from use of an algorithm far across the country “shows that Black children were the subject of nearly half of all the investigations flagged for additional scrutiny, despite making up 22% of the city’s child population, according to the U.S. Census,” the article states.
 
New York is not discussed in the article, but the use of such tools in the family regulation system was the topic of a Nov. 12, 2021, moderated discussion described on the McSilver Institute for Poverty Policy and Research at New York University website: “Proponents say tools such as predictive risk modeling improve child protection services and reveal racial disparities in their use, while critics say the algorithms perpetuate and even magnify those very same disparities.” The use of such tools in New York City is noted. Family defenders who know of them being used in other counties are encouraged to email Family Court Staff Attorney Kim Bode at kbode@nysda.org.
 
NYSDA has long expressed concerns about the use of algorithmic risk assessment instruments in the criminal system. See for example the last 2021 issue of The Backup Center REPORT (p. 4).
 
Manhattan DA Opens Post-Conviction Justice Unit
District Attorney Alvin Bragg’s office formally opened their Post-Conviction Justice Unit at the end of April. The unit is so named “to embrace the fact that convictions are not always ‘right’ or ‘wrongful.’ Instead, there are multiple measures of justice that may be appropriate after a sentence is imposed.”
 
The unit is led by Terri Rosenblatt, a former defender with The Legal Aid Society and The Bronx Defenders. Rosenblatt told City Limits that “‘system actors from all sides are human and capable of making mistakes,’ .... ‘I think that that’s not inconsistent with also knowing that the vast, vast majority of work that all prosecutors offices do is with the utmost integrity and justice-mindedness.’”
 
Review is available for anyone convicted of a crime prosecuted by the Manhattan DA’s office, regardless of how or when the case was resolved. Applicants convicted of a serious offense or who are current incarcerated or on community supervision will have their application prioritized. More information on the open application process can be found here.
 
Potential Federal Receivership of Rikers Island
In a letter to Judge Swain, the presiding judge of the longstanding Nunez federal monitor of Rikers Island, Southern District U.S. Attorney Damian Williams suggested the entire complex should be placed under the federal court’s control.
 
Elizabeth Glazer, the former head of the Mayor’s Office of Criminal Justice, called for federal receivership in an a mid April op-ed in the Daily News. Last week, that newspaper’s editorial board also called for a federal receiver.
 
In March, the monitor found that violence had been normalized at the complex. As a practice point, the monitor’s reports - especially the latest from March 16 - include language which is especially helpful in bail applications and writs of habeas corpus for clients incarcerated on the island. More from the Gothamist and Queens Eagle.
 
“The Superpredator Myth Did a Lot of Damage. Courts Are Beginning to See the Light”
In an Opinion published in the New York Times, with the above referenced title, James Forman Jr. and Kayla Vinson of the Law and Racial Justice Center at Yale Law School discuss the lingering impact the label “superpredator” has on mass incarceration and the recent decision by the Connecticut Supreme Court, argued by former deputy assistant public defender and current Buffalo Law Associate Professor of Law, Alexandra Harrington. Harrington is also the Director of the Criminal Justice Advocacy Clinic and Director of the Innocence and Justice Project at Buffalo Law. 
 
“The superpredator myth infected our legal system even when judges didn’t invoke it openly. Kristin Henning, a law professor at Georgetown and the author of ‘The Rage of Innocence: How America Criminalizes Black Youth,’ told us: ‘Looking back to cases from the 1990s, you won’t see too many judges use the word ‘superpredator,’ but it was definitely in the air. You can see it in the juvenile transfer laws that allowed young people to be tried as adults and in the long sentences many teenagers got. They all stem from that same idea that Black children must be feared and controlled.’”
 
Digital Court Reporting Issues Discussed
A Law360 Pulse piece posted on April 7 discusses nationwide issues concerning court reporting. The article begins with a Wisconsin case in which the discovery of a failure to record a bail hearing revealed that “the digital audio recording system was integrated with an old audio system in the courtroom and not integrated into the new system.” The seriousness, or even existence, of a court reporter shortage, as well as issues with new technology, are examined.
 
Student Loan Repayment and Forgiveness Updates
Thank you to the Education Debt Consumer Assistance Program for this update on student loans, the Public Service Loan Forgiveness Program, and related topics.
 
Income-Driven Repayment (IDR) Forgiveness—Changes Announced
For federal student loans, borrowers may be eligible for what is known as Income-Driven Repayment forgiveness. If they repay their loans while enrolled in an Income-Driven Repayment plan for 20-25 years, the remaining balance is forgiven. There is no specific employment requirement. Click here for more information about IDR. To date, less than 50 borrowers have qualified for this relief. The program has been poorly implemented. As a result, on Apr. 19, 2022, the U.S. Department of Education announced changes that will allow more borrowers to qualify for IDR forgiveness. These changes may also help borrowers pursuing PSLF. More details to come. Click here for currently available information.
 
Student Loan Payment Pause Extension
On Apr. 6, 2022, the U.S. Department of Education extended the payment pause for most federal student loan borrowers until Aug. 31, 2022. Interest rates will continue to be set to 0% and payments will be suspended through that date. Your loan servicer will notify you at least 21 days in advance of your first payment due date and amount. For updated and reliable information about the payment pause, visit studentaid.gov.
 
Relief for Defaulted Loans
On Apr. 6, 2022, the U.S. Department of Education announced a plan to give borrowers whose loans are in default a “fresh start” by eliminating the impact of delinquency and default on their credit report and allowing them to reenter repayment in good standing. This means that borrowers with defaulted federal student loans will have the opportunity to cure their defaults over the coming months. Stay tuned for more details.
 
Income-Driven Repayment (IDR) Plan Recertification Dates
IDR recertification dates have been pushed back for borrowers eligible for the payment pause. The earliest you will be required to recertify is March 2023. However, you can recertify before payments resume in September if your income is lower now than it was prior to March 2020. Note: This does not apply to certain FFEL loans that did not qualify for the payment pause. For more information click here.
 
Public Service Loan Forgiveness (PSLF)
If you are pursuing PSLF, here are a few things to know:
  • FedLoan servicing is still managing the PSLF program. This means that your loans must be with FedLoan if you want to know how many qualifying payments you have for the program, or if you want to know whether you qualify for forgiveness now.
  • MOHELA will take over the PSLF program and the Teacher Education Assistance for College and Higher Education Grant program later in the year as FedLoan is exiting the federal student loan servicing business. You can read more here. You will get advance notice if your loans are being transferred.
  • If you have sent PSLF related forms to FedLoan, know that there are processing delays.
  • As a reminder, you have until Oct. 31, 2022 to benefit from the PSLF Temporary Waiver rules. If you still have FFEL, Perkins, or other (non-direct) federal student loans, you’ll need to consolidate your loans into a Direct Consolidation Loan to qualify for the waiver and the original PSLF program. Here’s a video on the consolidation process.
  • Borrowers are receiving confusing notices about whether their loans have been reviewed under the Waiver. But they are also reporting forgiveness under these Temporary rules!
  • When in doubt, feel free to reach out to EDCAP for help.
 
Reconsideration for Public Service Loan Forgiveness (PSLF) Payment Count
Federal Student Aid (FSA) will introduce an online submission process to request reconsideration of PSLF and TEPSLF qualifying employment or payment determinations soon. If you feel the qualifying payment counts for PSLF or TEPSLF were not done correctly, you will have an opportunity to dispute them through this process. For the latest updates, click here.
 
Navient Settlement
Navient recently settled a lawsuit by 39 States, including New York for a total of $1.85 billion. We have received several inquiries from borrowers who currently have or have had loans in the past with Navient about whether they qualify for relief. The settlement will cancel debt for some private loan holders and return about $260 each to 350,000 federal borrowers. For more information, see the FAQs from the NYS Office of the Attorney General.
 
Beware of Student Loan Scams
Student loan scams are on the rise. If you are promised immediate forgiveness, asked for your FSA ID password, or asked to pay money upfront or monthly fees, it is likely a scam. You can read more here. You should never have to pay for student loan help. Call your servicer or contact EDCAP for free assistance.
 
Need Student Loan Help? Contact EDCAP
Contact the Education Debt Consumer Assistance (EDCAP) for free and unbiased student loan help: 888-614-5004 or edcap@cssny.org. They offer counseling services and can guide you through the PSLF waiver and application process. 


Association News


NYSDA Issues Statement on State Budget
In response to the State budget and the process that led up to its enactment, NYSDA has released a statement, “State Budget Takes Historic Criminal Justice Reforms Backwards, Harms Clients.” The statement addresses the rollbacks to the bail laws, changes to the discovery laws, and the failure to include an increase in the assigned counsel rates.
 
Upcoming Training
 
Friday, May 6, 2022, 12:00 – 2:30 pm: Litigating Medically Complicated Abuse Cases: A Toolbox for Family Court Defenders, with Emma Alpert, Supervising Attorney, Medically Complicated Team, Family Defense Practice, Brooklyn Defender Services; and Jessica Horan-Block, Director of Complex Litigation, Family Defense Practice, The Bronx Defenders. This program will provide 2.5 CLE hours in Professional Practice. There is no cost for this program. For details and program registration, click here.
 
Tuesday, May 10, 2022, 1:30 – 3:00 pm: The START Act: Rebuilding Lives Through Criminal Record Relief, with Zoë Root, Assistant Director, Survivors Advocacy Practice, Center for Appellate Litigation; and Abigail Swenstein, Staff Attorney, The Exploitation Intervention Project, The Legal Aid Society. There is no cost for this program. For details and program registration, click here.
 
Thursday, May 12, 2022, 12:00 – 1:00 pm: What Do You Mean, I’m Not Allowed to Drive?!, Impact of VTL 1192 Prosecutions on Driving Privileges, with Jonathan Cohn, Gerstenzang, Sills, Cohn & Gerstenzang. There is no cost for this program. For details and program registration, click here.
 
Wednesday, May 18, 12:00 – 1:30 pm: 2022 Discovery Reform Legislative Update and Certificate of Compliance Refresher, with Rebecca Phipps, Special Litigation Attorney, New York County Defender Services. There is no cost for this program. For details and program registration, click here.
 
Save the Dates: In-Person Training and Events Will Be Returning
 
NYSDA’s Annual Meeting and Conference will be held from July 24 to 26, 2022. The event will be held at the Gideon Putnam in Saratoga, with CLE sessions available both in person and online. More details will be available soon.
 
Friday, September 30, 2022: NYSDA will be hosting a full-day Family Court Program at Syracuse University College of Law. The training will be available in person and online. More details will be available soon.