Governor Cuomo has issued EO 202.106 that provides, in part: “Any and all suspensions and modifications of the Criminal Procedure Law presently in effect are hereby rescinded, except as follows:

While defenders are navigating the various EOs, the Backup Center urges attorneys to continue to make strategic arguments that include not conceding that any time was tolled pursuant to the various pandemic related EOs. Attorneys should not concede that 30.30/190.80 was suspended broadly as there are arguments to make that such a broad interpretation would result in the Governor exceeding the legislative authority given to him in Executive Law 29-a.

For those outside NYC who are in jurisdictions where the prosecution is taking the position that EO 202.87 “re-suspended” un-indicted felonies, there is an argument that 202.87 applied to the previous carve out for un-indicted felonies only in NYC. Assuming arguendo, EO 202.87 applies to counties outside of NYC, the modification should only be used “as necessary.” If grand juries were operational in your jurisdiction, then there’s no compelling reason why the prosecution could rely on the modification, and they must nonetheless meet their burden of showing “good cause.” A decision from Ulster County discussed below has some supportive language from the court to make this argument.

190.80 Release Ordered Where DA Failed to Show Good Cause 

As reported in Law and Crime on May 6, 2021, there was a decision in Ulster County earlier this week on a CPL 190.80 release where the prosecution failed to show good cause. See People v Snyder (County Ct, Ulster Co 5/3/2021). “While it is true that grand juries were not permitted to meet as often during the period in question as they would have been before the pandemic, it did not prevent the People from presenting cases to the grand jury and obtaining indictments in twenty-seven other cases.” The second good cause explanation proffered by the prosecution was a delay in DNA results. However, the court did not find that reason compelling as the court indicated that the DA did not “contact a supervisor there to ask that the analysis be expedited despite his awareness of the critical importance of such evidence to his case against the defendant and his ability to present it to a grand jury for indictment ….” Finally, the court said, “[i]n short, neither excuse offered by the People rises to the level of a ‘compelling fact or circumstance which precluded grand jury action within the prescribed period,’ and thus they have failed to establish the ‘good cause’ required under CPL 190.80.”

Dismissal on 30.30 Grounds For Failure to File COC + SOR During Pandemic    

In People v Gonzalezyunga, decided on Apr. 21, 2021, the prosecution did not file a Statement of Readiness (SOR) until January 2021, and asserted exceptional circumstances surrounding the COVID-19 pandemic and the suspension of CPL article 245. However, the court did not agree and said “the lone prerequisite to the People being ready is the filing of a COC [Certificate of Compliance]. Until the People do so, they remain in a ‘pre-readiness’ posture, which will be treated differently than prosecutorial delay after the People's announcement of ready for purposes of calculating speedy trial time. People v. Anderson, 66 NY2d 529, 498 N.Y.S.2d 119 (1985) ‘Pre-readiness’ delay, unless otherwise excludable, [See: CPL § 30.30(4)], will be charged entirely to the People, whether they asked for the entire period of the adjournment or not.” The court went onto explain that in a "’pre-readiness’ posture, ‘they cannot take advantage of court congestion so as to ignore their own responsibility of being ready for trial on time (see, People v. Brothers, 50 NY2d 413, 417-418, 429 N.Y.S.2d 558, 407 N.E.2d 405, supra).’ People v. Kendzizi,[a] supra[,] 338, 486 N.Y.S.2d 888, 891 (1985); See also: People v. Smith, 82 NY2d 676, 601 N.Y.S.2d 466 (1993) Moreover, the People fail to demonstrate how these adjournments prevented them from serving discovery and filing a timely COC and SOR.”

30.30 Decisions as Court Operations Resume Across the State

The Backup Center is working to keep track of the various decisions on CPL 30.30, including those challenges defenders are making as a result of the Executive Orders due to COVID-19. Please share with us! If you would like to discuss a matter, reach out via info@nysda.org or (518) 465-3524. Don’t forget to register for our training on May 19th, Stop.Start.Stop.Start: Current Status of CPL Time Limits and COVID Executive Orders, featuring Yung-Mi Lee, Legal Director, Brooklyn Defender Services. 

On May 3, 2021, the New York Law Journal “Decision Alert” featured People v Lavrik (Criminal Ct, New York Co 4/22/2021). The court found there were 93 days chargeable to the prosecution and ordered a dismissal of charges because prior statements of readiness were invalid. “This effort to retroactively certify the People’s readiness is ineffective because the speedy trial statute contemplates present readiness, not past, and not future. See, People v. Kendzia, 64 N.Y.2d 331 (1985).” The court added, “[t]he People further argue that while the intent of the legislature is clear, the language of CPL 30.30 (5-a) is not. This court disagrees. The People, in their analysis, muddy the waters and twist the language of the statute beyond logical interpretation when they argue that they should only have to certify the first clause of the statute.”

The Court further stated: “Consistent with this Court’s view, several other courts have begun to invalidate ‘statements of readiness’ which do not contain the required certification language, resulting in dismissal. See, People v. Aaron Ross, Decision and Order, Dkt. No. CR-025918-l9NY (Crim. Ct. N.Y. Co., Aug. 2020) (Gaffey, J.); People v. Manny Lopez, Decision and Order, Dkt. No. CR-001527-20NY (Crim. Ct. N.Y. Co., Jan. 2021) (Chu, J.); People v. Maria Ramirez-Correa; 2021 Slip Op. 21040 (Crim. Ct. Queens Co. Feb. 2021); People v. Rivera, Decision and Order, Dkt. No. CR-004779-20NY (Crim. Ct. N.Y. Co., Apr. 2021) (Maldonado-Cruz, J.).”

The Center for Appellate Litigation (CAL) addresses Batson challenges in the April issue of “Issues to Develop at Trial” (ITD). This is the second edition of the ITD Racial Justice Series, which is intended to highlight a number of issues that can help individual clients while advancing racial justice, as noted in the Mar. 19, 2021 edition of News Picks.

Prior editions of “Issues to Develop at Trial” are posted on the CAL website. NYSDA thanks CAL for making this resource available to public defenders.

The latter issues were noted in earlier News Picks. The Mar. 1, 2021, edition noted a focus on health issues following the announcement that in-person court operations, including jury trials, would resume in March. Juxtaposed against safety concerns was the toll on justice that the COVID-19 shutdown had wrought, including delays and on case outcomes. The difficulty of defending clients remotely was further addressed in the March 19th News Picks, and was among issues noted in the “Report and Recommendations of the Future Trials Working Group” mentioned in the April 16th News Picks. But now, the Backup Center is receiving inquiries and finding increasing information relating to problems arising during in-person trials while COVID-19 persists.

A New York Times article on April 22nd about jury duty noted issues such as the tension between mask requirements and confrontation rights, and various approaches to solving the problems, such as allowing witnesses to testify without masks—but creating a plexiglass witness booth to block virus circulation. Two weeks earlier, the Associated Press coverage of the Derek Chauvin trial for the death of George Floyd included an “Explainer” on the question, “Could mask hamper ex-officer’s image with jurors?” A more comprehensive look at jury issues and COVID-19 can be found in material from the University of North Carolina’s School of Government on “COVID-19 and the Resumption of Criminal Jury Trials.” One publication from Mar. 12, 2021, addressed jury selection. Primary topics include whether a fair cross section of the community can be achieved, when many potential jurors fear to come to court or may be excused, and the challenges of conducting voir dire. As to the latter, the report notes a lack of clear decisional guidance on “when a trial court’s decision to limit the voir dire process crosses a threshold and violates due process” even in pre-pandemic situations, but does provide some possibly helpful citations. A second publication issued the same day deals with presentation of evidence.

The National Association of Criminal Defense Lawyers (NACDL) has posted a set of model pleadings and other court papers on their Coronavirus Resources webpage. Among what is found there is a January 2021 motion for jury selection records, which refers to possible fair-cross-section arguments that might be raised if information shows that, for instance, many senior citizens or members of racial or ethnic minority groups are declining to report for jury duty due to fear of COVID-19. NYSDA’s Backup Center continues to seek out and share information on proceeding with jury trials and other pandemic-related issues; please contact us if you have questions or information to share.

We hear that, once again, defenders are being asked about rumored upcoming changes in sentencing law, such as the elimination of determinate sentencing and return to all felonies carrying indeterminate sentences. Because the Graybook (New York Criminal Statutes and Rules) includes two versions of many sentencing statutes, with editorial notations that current law is valid “until Sept. 1, 2021,” after which the alternative (old) version will become effective, hopes arise among clients. However, these laws were renewed this year, just as they have been every time they have been scheduled to “sunset” since 2005. L 2021, ch 55, Part A, § 19.

Working with many partner organizations, NYSDA successfully advocated for the passage of defender budget appropriations in the FY 2021/2022 State Budget to improve the criminal justice and family court systems. COVID-19 impacted both negotiation procedures and available money, making advocacy especially difficult and contributing to the delay in passage beyond the April 1 deadline. The budget that passed on April 7th and was signed by the Governor included the following.

The Indigent Legal Services Office (ILS) received $307.3 million for aid to localities in their provision of mandated legal services. This includes continued funding of the Hurrell-Harring settlement and the State’s commitment to extend the benefits of that settlement to the entire state, as well as other established distributions to counties. And, for the first time ever, the State appropriated $2.5 million for the improvement of parental representation by public defenders; while only half of what ILS requested, this appropriation is an important beginning. NYSDA will continue to work with ILS, family defenders, and others to obtain an increase in the level of state funding for family defense. NYSDA also thanks ILS for its support of NYSDA’s budget.

Other continuing advocacy will include a hard push for an increase in the statutorily-set fees for assigned counsel, and state funding for that increase. The current rates have been in effect since 2004. The unsuccessful efforts this year to raise New York’s rates to be in line with federal assigned counsel rates will be redoubled in the coming months, and will continue to include demands for some form of indexing to keep rates current. Other public defense funding issues include the need for increased Aid to Defense, created as a counterpart to Aid to Prosecution to offset some of the increased costs of certain law enforcement initiatives. For more information on public defense budgets, please contact the Public Defense Backup Center at (518) 465-3524 or info@nysda.org.

As noted in the April 9th edition of News Picks, NYSDA and its partners obtained some much-needed justice reforms this budget season, including the Marijuana Regulation and Taxation Act and HALT Solitary.

The Parole Voting Rights bill, which was passed on April 22nd and has been signed by the Governor, had NYSDA’s strong support (see our memo). The law will ensure restoration of voting rights to people who have been released from incarceration regardless of whether they are subject to parole supervision, eliminating the need for a conditional pardon. This law (L 2021, ch 103) enacts a simple, bright line rule that is easy to administer and understand: if you are living in the community, you can vote. The law was immediately effective, although certain directives don’t take effect until 120 days after it became law, such as requiring courts to advise people pleading guilty to a felony that they will lose the right to vote while incarcerated on that sentence and will have their right to vote restored upon release.

We continue to seek additional reforms. Among those are three bills we are working on with the Center for Appellate Litigation, The Legal Aid Society, Chief Defenders Association of New York, and other organizations, relating to criminal court appeals: A5687/S1280, which would allow appellate courts to review excessive sentences regardless of appeal waivers; A5688/S1281, which would allow appellate courts to review suppression rulings regardless of appeal waivers; and A5689/S1279, which would streamline access to appellate counsel for individuals who cannot afford counsel by allowing attorney certification of poor person status. Information regarding this legislation can be found here.

NYSDA is also signed on as an organizational supporter of the Clean Slate NY bill, S1553-A/A6399, which would automatically clear a New Yorker’s criminal record once they become eligible. The coalition pressing for its passage has a website with information about this effort to ensure that people convicted of crimes are not punished beyond their sentences and can be full and fair participants in economic and civic life.

Additionally, NYSDA urges support for these criminal justice bills: “Babe Ruth” Criminal Justice Equity (S2888/A2266), which would raise the monetary threshold for felony-level criminal mischief—for the first time since Babe Ruth hit his first career home run—from $250 to $1,000; three parole bills—Elder Parole Act (S15/A3475), Fair & Timely Parole Act (S1415/A4231), and Less is More Act (S1144/A 5576); Improved Prison Visiting Programs (S2841-A/A4250-A); and Right to Remain Silent Act (S2800/A5891) clarifies and protects the rights of children who are in police custody.

As reported in the May 3, 2021, edition of the Imprint Youth & Family News, a group of New York State legislators and parent advocates joined for a virtual rally on May 3rd advocating for legislation that, if signed into law, would; 1) Bar anonymous child abuse and neglect reports; 2) Arm parents with Miranda-style rights when they are accused (S5484) and; 3) Require written consent for drug testing new and expecting mothers in hospitals (S4821/A4285). The participants of the rally included Halimah Washington, community coordinator for Rise Magazine; Joyce McMillan, founder of the Parent Legislative Action Network; and Assemblymembers Latrice Walker and Linda Rosenthal.

In the February 22nd edition of News Picks, we reported that NYSDA, along with 17 other family defense organizations from around the state, sent a letter dated February 11th to Governor Cuomo, Senate Majority Leader Stewart-Cousins, and Assembly Speaker Heastie, imploring them to adopt a slate of legislative priorities to start the process of reforming a family regulation system “shaped by structural racism.” In addition to advocating for the priorities listed above, the group also called for post-termination of parental rights contact, and giving judges the authority to grant an adjournment in contemplation of dismissal without the need for all parties to consent. The former bill (Preserving Family Bonds) was passed several years ago, but was vetoed by the Governor; it has been reintroduced in this legislative session as S6357/A6700. To date, the path towards reforming a family regulatory system that has caused devastating harm to poor, Black and brown families, remains difficult at best.

Significant concern continues among parent and child advocates alike about the disproportional impact that the COVID-19 pandemic is having on already-struggling poor, Black, and brown families caught up in the child welfare system, especially those with children in foster care. These concerns extend beyond the borders of NYS. As reported in the May 2, 2021, edition of Imprint Youth and Family News, “In interviews The Imprint and Type Investigations conducted with lawyers, family members and child welfare advocates in at least six states, it’s clear that child welfare timelines have imposed unfair burdens and an unreasonable expectation for parents who — even under normal circumstances — have difficulty complying with court orders to get their kids back.”

Such concerns arose as soon as it was clear the pandemic was not a brief event. In the Oct. 20, 2020, edition of News Picks, we published both a letter from a coalition of concerned parent and advocates to Commissioner Sheila Poole of the NYS Office of Children and Family Services asking for formal guidance on how requirements were to be applied during the COVID-19 crisis, and NYSDA’s own letter in support. These requests for guidance were prompted out of concern that the counties would continue to file Termination of Parental Rights (TPR) petitions, as usual, despite the COVID-19 shut down, which had almost completely stopped in-person visitations for children in foster care and services for parents to complete their court mandated programs. Many parents and their attorneys feared that each passing day of programs being on hiatus brought them one step closer to seeing a TPR filed.

OCFS indicated in a letter on Sept. 16, 2020, that March through August TPR filings had dramatically decreased from 225 in 2019 to 8 in 2020. In response, we submitted a Freedom of Information Law request for TPR data, asking for a list of the counties where the 8 filings occurred. Upon release of this information in April, it showed that the number of filings for this time period was approximately 200. Here is an excerpt from the FOIL response explaining the apparent discrepancy in numbers obtained from a database known as CONNECTIONS: “The data in the previous letter captured data from CONNECTIONS related to completed TPRs where the petitions had been filed during the selected period. The data being provided in response to this FOIL request reflects information in CONNECTIONS showing the number of unique children with TPR petitions filed during the years requested.”

Conviction Overturned Because of Brady Violation

In an article entitled “Conviction overturned on Brady issue” in The Daily Record, on April 23, 2021, a Clinton County case is featured where Judge Lawliss ruled there was a Brady violation and overturned the conviction. People v Franklin, 2021 NY Slip Op 21104 (County Ct, Clinton Co 4/20/2021). In Franklin, the prosecutor did not disclose to the defense that the co-defendant made inconsistent statements, including a recantation of a statement that he previously made that inculpated the accused. The court noted: “It is undisputed that the People did not disclose Mr. Schulz’s statement to Defendant prior to Defendant’s guilty plea.” The court further found that the conviction “was obtained in violation of his rights under the New York State and United States Constitutions, and accordingly, the Judgment must be vacated.”

An April 23rd editorial in the Los Angeles Times begins: “The U.S. Supreme Court, which in a landmark 2012 decision made it harder to send juveniles to prison for life without parole, reversed course Thursday by holding that judges may impose such a sentence without determining that the offender is ‘permanently incorrigible.’” The case, Jones v Mississippi, did not overturn the landmark decision referred to, Miller v Alabama, but did end the trend of limiting even further the power of states to impose life without parole (LWOP) on young people. The defendant, Brett Jones, had received a mandatory LWOP sentence for killing his grandfather at age 15 that was affirmed by the state’s Court of Appeals in 2006. After Miller, the judge at a new sentencing hearing acknowledged that he could impose a sentence less that LWOP, and found LWOP to be the appropriate sentence. To resolve conflicts in state and federal courts about how to interpret Miller and the case that followed it, Montgomery v Louisiana (577 US 190), the U.S. Supreme Court granted certiorari. In an opinion by Justice Kavanaugh, the Court said that Miller and Montgomery had rejected a requirement that there be “a separate factual finding of permanent incorrigibility before sentencing” a defendant under 18 to LWOP for murder. He noted that “Montgomery directs us to ‘avoid intruding more than necessary’ upon the States,” adding, “and because a discretionary sentencing procedure suffices to ensure individualized consideration of a defendant’s youth, we should not now add still more procedural requirements.” Justice Thomas, concurring, opined that Montgomery was erroneously decided. Justice Sotomayor, with Breyer and Kagan, dissented.

A Capital Tonight segment on Spectrum News NY1 provided an interview with Derek Coy, veterans health officer at the NYS Health Foundation, in which he was asked to recommend some of the best programs for particular groups of military veterans needing help. He mentioned three, one of which was NYSDA’s Veterans Defense Program (VDP), saying “They’re pretty tremendous.” The shout-out was tweeted by @Justice4Vets, retweeted by NYSDA. (NYSDA tweets scroll on our homepage for those who are not on Twitter.)

May 14, 2021, 1:15 - 2:15pm: I Just Got Assigned to a DVSJA Resentencing- What Do I Do Now?, presented by Kate Mogulescu (Associate Professor of Clinical Law, Brooklyn Law School, Director, Survivor’s Justice Project); Alan Rosenthal (Attorney at Law); and Patrice Smith (DVSJA Advocate and Resident Supervisor, Exodus Transitional Community). There is no cost to attend this program, but pre-registration is required. If interested, please register here.

May 19, 2021, 3:00 - 4:30pm: Stop.Start.Stop.Start: Current Status of CPL Time Limits and COVID Executive Orders, presented by Yung-Mi Lee (Legal Director, Criminal Defense Practice, Brooklyn Defender Services. There is no cost to attend this program, but pre-registration is required. If interested, please register here.

May 20, 2021, 3:00 – 5:00pm, Criminal Defense with Cultural Competence: Working with Clients from the Northern Triangle, co-sponsored with the Long Island Regional Immigration Assistance Center (RIAC), the program will feature Dr. David Brotherton (Professor, John Jay College of Criminal Justice); and Elizabeth Tonne-Daims (Padilla Attorney, Long Island Regional Immigration Assistance Center). Full program details and registration information coming soon.

June 3, 2021, 1:00 – 3:00pm, The Intersection of Immigration, Criminal and Family Law in NYS, An Overview, co-sponsored with the Albany County Regional Immigration Assistance Center (RIAC), the program will feature Evelyn Kinnah (Director, Albany County Regional Immigration Assistance Center). Full program details and registration information coming soon.

 

June 11, 2021, 12:00 – 1:15pm, Family Court Legislative Update: Discussion of New Marijuana and State Central Registry Legislation, presented by Amy Mulzer (Senior Staff Attorney for Law and Appeals, Family Defense Practice, Brooklyn Defender Services) and Nila Natarajan (Supervising Attorney and Policy Counsel, Family Defense Practice, Brooklyn Defender Services). There is no cost to attend this program, but pre-registration is required. If interested, please register here.

NYSDA strives to provide as many training programs as possible for no cost or very low cost. For those of you who are not already members of NYSDA, we encourage you to join or donate to the Association so that we can continue to provide these and many other training programs and support services, as well as to expand our services to meet your needs. And if you are a member, but have not yet renewed for 2021, please do so today. If you have any questions about your membership or our Association, please feel free to contact Executive Director Susan C. Bryant at (518) 465-3524 x26 or sbryant@nysda.org.