News Picks from NYSDA Staff
May 08, 2020
Executive Order Extends Suspension of Laws But Allows Preliminary Hearings and Pleas
On May 7, 2020, the Governor issued Executive Order No 202.28, which continued the temporary suspension and modification of a number of laws until June 6, 2020. The relevant provisions of the earlier Executive Orders and the newest one are available
. The EO says that suspensions of time limits in the CPL are modified as follows:
- Section 182.30 of the Criminal Procedure Law, to the extent that it would prohibit the use of electronic appearances for certain pleas;
- Section 180.60 of the Criminal Procedure Law to provide that (i) all parties’ appearances at the hearing, including that of the defendant, may be by means of an electronic appearance; (ii) the Court may, for good cause shown, withhold the identity, obscure or withhold the image of, and/or disguise the voice of any witness testifying at the hearing pursuant to a motion under Section 245.70 of the Criminal Procedure law—provided that the Court is afforded a means to judge the demeanor of a witness;
- Section 180.80 of the Criminal Procedure Law, to the extent that a court must satisfy itself that good cause has been shown within one hundred and forty-four hours from May 8, 2020 that a defendant should continue to be held on a felony complaint due to the inability to empanel a grand jury due to COVID-19, which may constitute such good cause pursuant to subdivision three of such section; and
- Section 190.80 of the Criminal Procedure Law, to the extent that to the extent that [sic] a court must satisfy itself that good cause has been shown that a defendant should continue to be held on a felony complaint beyond forty-five days due to the inability to empanel a grand jury due to COVID-19, which may constitute such good cause pursuant to subdivision b of such section provided that such defendant has been provided a preliminary hearing as provided in section 180.80.
NYSDA Joined Defenders Across the State Expressing Due Process Concerns
On May 5, 2020, NYSDA co-signed a letter submitted to Chief Administrative Judge Marks, along with CDANY and NYSACDL and several defender offices across the state expressing due process concerns in light of the suspension of laws as it relates to 180.80 and related CPL provisions. This letter can be viewed
AO/87/20, Next Steps & Filing Documents Using the New Document Delivery System
Chief Judge DiFiore’s
May 4th message
discussed the expansion of virtual operations pursuant to
for filing motions as laid out in Chief Administrative Judge Marks’s
April 30 letter
. The next steps for expanding limited operations took effect Monday, May 4, and include expanded motion practice, allowing case conferencing in problem-solving courts, filing notices of appeal, and referrals to ADR. The courts also posted an
for the public and attorneys and launched the
Electronic Document Delivery System
(EDDS) to electronically file and deliver documents to the courts (including courts that do not usually permit electronic filing). The EDDS site notes that “documents accepted for filing through EDDS must be served on other parties by email, facsimile, or other electronic means” and “EDDS should NOT be used for the filing of emergency applications.” A User Guide for Family Court Submitters is available
. Should other guides become available, we will post them on our
Virtual Court Resources
NYSDA is working with defenders across the state to help coordinate and ensure resumption of court operations includes defense considerations. If you would like to share any concerns, or have specific issues, please reach out to us via the
Backup Center contact form
or by emailing our Executive Director, Susan Bryant, at firstname.lastname@example.org.
Info on COVID-19 and CLE Requirements
The NYS CLE Office has posted a document addressing changes in continuing legal education (CLE) requirements during the ongoing pandemic.
Coronavirus and the NYS CLE Office
includes information on changes to CLE format restrictions for newly-admitted attorneys; expanded authorization for accredited providers to present training remotely; directions for contacting the CLE Office about various issues; and more.
NYSDA, an accredited CLE provider, has begun presenting webinars for CLE credit. Watch for email notices from us and check the
NY Statewide Public Defense Training Calendar
for information about our programs and those offered by other organizations.
Scheduling Conflicts Wrongly Delayed Child Custody Hearing Says First Department
A father won an important victory when the First Department reversed a Bronx Family Court’s decision denying his motion for an expedited hearing on the issue of whether his children, who had been previously removed from his custody post-disposition, should be returned. Noting the fundamental liberty interests surrounding a parent’s right to raise and care for their children, the First Department stated that to prolong such a hearing over a six month period, for no other reason than the court’s and attorneys’ scheduling conflicts, was a violation of due process. While the court declined to give specific guidance as to what would have constituted a prompt result in this case, it did “rely on the general precept that that a post-deprivation hearing ‘should be measured in hours and days, not weeks and months’ ….” The Bronx Defenders and the NYU School of Law Family Defense Clinic represented the father. The decision is
Matter of F.W.
, 2020 NY Slip Op 02385 (1st Dept 4/23/2020).
Downward Modifications of Child Support and COVID-19
As New York on “Pause” extends, so does the list of people unable to pay their court ordered child support, through no fault of their own. Although petitions for downward modifications of child support are not presently considered essential court filings under the Chief Administrative Judge’s Administrative Orders, there are steps that can be taken to defend against contempt proceedings in the future. Defenders should consider advising their clients to document all their efforts to affirmatively help themselves, e.g., keeping an employment log, attempts to file for unemployment, attempts to file for downward modifications, etc. At present, child support can only be modified retroactive to the date of the filing of the petition. Although it remains unknown when modification petitions will be accepted by the court again, and what if any changes will be made to the child support laws, the Empire Justice Center suggests on its
COVID-19 stimulus checks and child support FAQ webpage
that, “It may help your case if you fill out a petition for modification now, keep a copy and mail the petition to the Clerk of the Family Court where your current order is based, with proof of mailing.” Those defenders seeking direction on how to advise their clients can visit that Empire Justice Center page, and NYS Office of Temporary and Disability Assistance
, which contains some FAQ’s re COVID-19. Additionally, the New York Law Journal published an April 29
discussing this child support conundrum in further detail.
Working Remotely and the Pandemic Pose Ethics Issues
A recent item in the
National Law Review
flagged a Pennsylvania Bar Association opinion containing reminders of ethical obligations to consider in the adjustment to practicing law from home offices. The
notes that the focus of the opinion is confidentiality, including the need to minimize risk of inadvertent disclosure of communications and information. The
itself, issued on April 10, 2020, addresses a number of questions that arose as lawyers and their staff began working remotely. It cites earlier PA ethical opinions about cloud computing and virtual offices and adopts the American Bar Association (ABA) Standing Committee on Ethics and Professional Responsibility in Formal Opinion
concerning securing communication of protected client information.
For many New York attorneys, the need to consider confidentiality and other ethical requirements in the context of electronic communication and information storage is not new. NYSDA provided information in its
March 19, 2018 edition
of News Picks on helpful technology resources. Those included:
NYSBA Social Media Ethics Guidelines
NYSBA Ethics Opinion 1019
(Confidentiality; Remote Access to Firms Electronic Files); and
Ethical Implications of Emergent Technologies
(New York Legal Ethics Reporter). The ABA Children’s Rights Litigation Committee has posted an
on “Privacy Considerations for Remote Client Conversations". It includes a link to
of several communication applications’ features and confidentiality issues (noting that this area is subject to rapid change). Attorneys are encouraged to contact the Backup Center with questions about keeping confidential information secure.
A different ethical issue stemming from COVID-19 has been raised by the New York City Bar, which has called for “Urgent Amendment to Rule 1.8(e) of the New York Rules of Professional Conduct to Provide ‘Humanitarian Exception.'” The
prohibits lawyers from providing financial assistance to clients while representing them “in connection with contemplated or pending litigation,” with very limited exceptions including paying court costs and litigation expenses for indigent clients. The City Bar’s
April 24 memo
called on the Chief Judge and the four Presiding Justices of the appellate divisions to speedily adopt an already-pending amendment to the rule so that lawyers may “provide much needed financial assistance to those in need during this unprecedented time.” Alternatively, the memo asks that at least a temporary order be issued adopting the exception. Examples given of the need for the amendment include the desire of a non-profit serving immigrants to help when a significant number of its clients became unemployed, by helping pay for food and rent.
Yet another concern is the ethical dilemma that may be presented when an attorney faces a choice between staying at home—to avoid contact with others but leaving a client unrepresented at a scheduled in-person proceeding—and facing potential exposure to the virus by attending the proceeding. A lawyer in an Ashville, NC, federal court reportedly argued back in March,
“‘defense counsel should not ethically and humanely be forced to choose between advocating for their clients versus their family.’” The April 17
discussing the issue referred to a New York story with a sad ending. A judge alleged to have told a lawyer complaining about the lack of social distancing in court, “[i]f you don’t like it, you can leave,” later died of COVID-19, according to the
New York Daily News
As the Governor, Chief Judge, and other state and local officials reveal plans to re-open New York courts, the health and professional responsibilities of lawyers, along with the safety of all others who could be exposed to the novel coronavirus going forward, must be taken into account. Defenders’ ethical and other concerns should be heard.
Among questions that may arise: how can continuous representation standards be met while public defense programs work to establish protocols that take into account that some attorneys may be at higher risk of serious illness from COVID-19? How can courts address the need for distancing, frequent cleaning/disinfecting of public areas, and other aspects of stopping the virus’ spread in public courtrooms while also protecting basic constitutional rights, such as the right to counsel, the right to a speedy trial, and the right of public access to court proceedings? Defenders and officials with concerns about these and other ethical issues are encouraged to contact the Backup Center.
COVID-19 Resources for Law Enforcement
Defenders needing information on state guidance to law enforcement during the novel coronavirus pandemic should check
. This NYS Knowledge Bank page indicates that the Division of Criminal Justice Services (DCJS) will update the page as information become available. It includes links to a wide variety of websites and webinars. Some state-specific resources include memos from the Office of Probation and Correctional Alternatives on
Emergency Probation Procedures
(March 16) and
Emergency Procures – NYS Ignition Interlock Program
(April 4). NYSDA’s
Coronavirus 2020 Websites to Check Regularly
includes a link to the Resources for Law Enforcement site.
Conditions in Federal Detention Documented by Former Medical Director
On April 30, 2020, a “Facility Evaluation of Metropolitan Detention Center Covid 19 Response” was filed in the Eastern District of New York by former Medical Director
Dr. Homer Venters
. He explained, “Most people within the MDC are not being effectively screened for COVID-19 signs or symptoms. When the MDC staff screens people for COVID-19, they rely only on temperature checks, which is a serious deviation from accepted standards.” Furthermore, he explains, “Patients may repeatedly submit sick call requests with COVID-19 concerns, but the facility lacks the clinical response to find and care for those individuals. It also lacks the interest in aggregating that information to understand the symptoms in terms of the overall outbreak in the facility. MDC is therefore not prepared to effectively contain any outbreak of COVID-19—its practices put detainees and staff at grave risk of infection, serious illness and even death.”
Conditions in NYS Prison Cited in Calls for Release
While the proposed class action seeking relief from the COVID-19 dangers in MDC proceeds, as discussed in an April 28
New York Law Journal
, lawyers are also seeking release of clients in state and local facilities across New York, citing similar deficiencies. Some documents relating to these actions are available on NYSDA’s
Coronavirus 2020 Defender Practice Materials page
, and others may be available to attorneys who contact the
Suffolk County Decision Declares Extra Administrative Fee Unconstitutional
On April 28, 2020, the Suffolk County Supreme Court issued an
striking down, as excessive, an extra administrative fee added to the processing of red light traffic tickets. A May 5 article on TheNewspaper.com,
New York Court Rejects Excessive Court Fees
, reported about the decision.
Advocates and Legislators Call for Ending Fines & Fees
In coordination with the Driven By Justice Coalition and the Fines and Fees Justice Center, sixty state legislators signed a
letter sent to Governor Cuomo
, urging him to take seven steps, using his expanded executive authority, to prevent poverty-based police-civilian interactions and incarceration, and to provide relief from widespread financial insecurity during this crisis. This was publicized at a
on April 27th. In response to COVID-19, numerous jurisdictions across the U.S. are
changing their fines and fees policies
to protect public health, scale back the criminalization of poverty, and ensure that people can meet their basic needs.
on the issue. “‘For months, we have been working hard to end the suspension of drivers’ licenses based on the inability to pay traffic fines or failure to appear in court,’ state Sen. Tim Kennedy, D-Buffalo, said during a video news conference Monday. ‘Simply put, that inability to pay just became that much more common as we have millions out of work during this pandemic.’”
The economic fallout from the COVID-19 pandemic is exacerbating a longstanding problem with “offender-funded” systems. That problem was noted in, for example, the
October 23, 2015 edition
of News Picks.
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