Domestic Violence Survivors Justice Act Signed
Legislation to expand the situations in which judges can consider domestic violence survivors’ abuse when determining appropriate sentences for those who commit offenses is now law. The Domestic Violence Survivors Justice Act (DVSJA) passed the Legislature ahead of the state budget, but was not signed until this week. A tweak to fix an inadvertent omission was included in the budget that passed and was signed weeks ago. L 2019, ch 55, Part WW (pp. 59-60). The DVSJA itself was handed up to the Governor and signed on May 14. The new law, L 2019, ch 31, amends Penal Law 60.12 and 70.45 as well as CPL article 440. It adds to the latter a new section—440.47—that provides for motions for resentencing. References to that section are added to CPL 450.90 and 390.50.

As summarized on the City Bar of New York website, the legislation will “allow judges to impose an alternative sentence if he or she finds that: 1) the defendant, at the time of the offence, was a domestic violence victim subjected to substantial physical, sexual, or psychological abuse inflicted by a member of the same family or household; 2) the abuse was a significant contributing factor to the criminal behavior; and 3) a sentence under the general sentencing provisions would be ‘unduly harsh.’” The new law is also described and lauded in a news release on the Governor’s website.

For sentences imposed going forward, the law became effective immediately. The provisions dealing with resentencing become effective 90 days from the day the bill became law, i.e. Aug. 12, 2019.

“Defrosting” NY Courts: OCA Limits ICE Arrests in Courthouses
As the Associated Press reported last month, “Immigration and Customs Enforcement [ICE] agents looking to make arrests inside courthouses in New York can’t do so without judicial warrants or orders, according to a directive from the New York State Office of Court Administration that took effect [April 17, 2019].” An NPR story provided a link to Directive 1-2019, posted on the Immigrant Defense Project website. The New York Law Journal noted Chief Administrative Judge Lawrence Marks’ comment that an 80-page report detailing the impact of ICE operations in state courthouses “‘provides us with a sufficient basis to take the step that many have asked us to take ….’” That report, Safeguarding the Integrity of Our Courts: The Impact of ICE Courthouse Operations in New York State, contains information gathered over more than two years by the ICE Out of Courts Coalition.

ILS to Hold Hearings on Eligibility for Counsel in Family Matters
The New York State Office of Indigent Legal Services (ILS) is statutorily required to issue criteria and procedures for determining whether someone qualifies for publicly-funded representation in those family law matters for which counsel must be provided. As it prepares to fulfil this obligation, ILS seeks the views and experiences of public defense providers, current and former clients, judges and county officials, and others. Four hearings have been announced, one in each of the Appellate Division Departments. Click here for information on applying to testify in person and/or submitting written testimony.

Written testimony must be submitted by 5:00 pm Friday, July 19, 2019. Hearings will be held from 1:00 to 4:00 p.m.; due to time constraints, there is no guarantee that an applicant will be selected to appear in person. Requests to testify must be received no later than 14 days before the scheduled hearing. The schedule is:

  • Fri., May 31, 2019, First Department, New York, NY
  • Wed., June 19, 2019, Third Department, Albany, NY
  • Wed., July 17, 2019, Second Department, Brooklyn, NY
  • Wed., Aug. 14, 2019, Fourth Department, Rochester, NY

ILS issued Criteria and Procedures for Determining Assigned Counsel Eligibility in April 2016. Those standards, issued under both ILS’s statutory mandate and the Hurrell-Harring lawsuit, can be found here. At that time, ILS indicated that separate criteria and procedures for family matters would follow, building upon and consistent with the standards issued in 2016 while tailored as needed for family law.

Raise the Age Updates: New Regulations, Data, and Reports
The NYS Division of Criminal Justice Services (DCJS) has adopted regulations related to Raise the Age (RTA). An Office of Probation and Correctional Alternatives (OPCA) memo to probation directors and commissioners on the new regulations is available here. It contains links that can be followed to all the new regulations. The new rules appear in 9 NYCRR Parts 347, Appendix H-10 (Standard Specifications for Professional Probation Positions), 348 (Case Record Management), 350 (Investigations and Reports), 351 (Supervision of Persons Sentenced to or Placed on Probation), 352 (Graduated Responses), 356 (probation services in juvenile delinquency cases), and 359 (probation in the youth part).

Of particular note is the new Part 359, which details the role of probation in the youth part and took effect on Mar. 27, 2019. The stated objective of Part 359 is “to define probation’s role in offering Voluntary Assessment and Case Planning Services, and when probation departments deliver pretrial release services, to the Adolescent Offender and Juvenile Offender charged with a crime in the Youth Part of Superior Court.” The regulations require probation directors to create and disseminate to department staff written policies and procedures for the uniform provision of voluntary assessment and case planning services. The policies and procedures must require the presence of probation at the initial appearance of the regularly scheduled youth part and include “[e]nsuring that the youth is notified that they may be accompanied by their legal counsel during their voluntary assessment”; ensuring that the department does not transmit or otherwise communicate to the prosecution or the youth part any statement made by the adolescent offender or juvenile offender to the department; and providing a summary in the presentence investigation “summarizing assessment findings, referrals, and progress with respect to mitigating risk and addressing any identified needs.”

The DCJS assessment of public comment on Part 359, available here, provides insight into the rules and their application. For example, in response to a comment asking that the regulation be amended to require defense counsel consent to the agreement for voluntary assessment and case planning services, DCJS stated: “[s]igned consent of counsel is not required by statute precluding DCJS from mandating it in regulation. However, DCJS will encourage probation officers to obtain the consent of counsel and has developed a standardized ‘Notice of Agreement for Voluntary Assessment and Case Planning’ form that provides for the consent of the youth’s attorney and/or parental figures to ensure consistency throughout New York State.”

Other recent RTA data and reports of note:

CAL: Object to Standard CJI “Interested Witness” Charge
Citing a recent Second Circuit case, the Center for Appellate Litigation (CAL) suggests in its April 2019 edition of Issues to Develop at Trial that defense lawyers lodge an objection to the standard “Interested Witness” charge contained in the Criminal Jury Instructions (CJI). In United States v Mehta , 919 F3d 175 (2d Cir 2019), the jury was instructed that they could consider that “‘a defendant’s interest in the outcome of the case creates a motive for false testimony, but it by no means follows that a defendant is not capable of telling the truth.’” This was found to be error which, compounded by other issues, required reversal. The CAL article sets out the CJI instruction, notes New York law approving such a charge, and offers specific points to make when objecting to the charge on due process and Fifth Amendment grounds under Mehta. Possible alternative charges are offered.
Prior editions of Issues to Develop at Trial are available at . NYSDA thanks CAL for sharing this resource. 

Association News

February-April Issue of NYSDA’s  Backup Center   REPORT   Available
The February-April 2019 issue  of NYSDA’s  Public Defense Backup Center REPORT  is available on the NYSDA website. NYSDA members will receive a hard copy of the latest issue by mail soon. If you have any questions, please contact the Backup Center at 518-465-3524.

Save the Date: NYSDA’s 52nd Annual Meeting
NYSDA’s 52nd Annual Meeting and Conference will be held at the Gideon Putnam in Saratoga Springs from Sunday, July 21 to Tuesday, July 23, 2019. The program brochure and registration information will be available soon. We will be offering training on the new discovery, bail, and speedy trial laws enacted earlier this month along with our annual Court of Appeals and US Supreme Court updates and a number of other timely subjects.

Rooms at the Gideon Putnam may already be sold out, but we also have arranged for a group room block at the nearby Hilton Garden Inn Saratoga Springs at 125 South Broadway. To make a reservation at the Hilton Garden Inn, call (877) 782-9444 or (518) 587-1500 (option 0) and use Group Name: NYS Defenders and Group Code: DEFEND. Or visit The group rate is $201/night (single or double occupancy). Gideon Putnam reservation information: (866) 746-1077, Group Code: 9nc5yz and Event Name: NYS Defenders Association 2019 Conference. The group rate is also $201/night (single or double occupancy).

Bryant Appointed Executive Director
On May 10, 2019, NYSDA’s Board of Directors unanimously voted to appoint Susan C. Bryant as Executive Director. Board President Edward J. Nowak said in announcing the appointment of Bryant, who has served as Acting Director recently and for much of 2018, “Susan’s commitment to NYSDA and defense services cannot be overstated. We know that we will continue to benefit from her intellectual acumen, hard work, energy, and commitment to NYSDA and NYSDA’s mission.” Bryant had become Deputy Director in 2017 after working at NYSDA for a decade; she served as a Staff Attorney, during which time she received the Kevin M. Andersen Memorial Award from the Genesee County Public Defender’s Office, and then as Special Counsel.

VDP Hires New Staff
NYSDA's Veteran’s Defense Program (VDP) has hired new staff for its Batavia office.

Richard Henry, who separated from the Marine Corps after serving four years as a Motor Transport Operator, providing training during Logistics Officer Course field exercises, is now a VDP Case Manager. Currently pursuing a double major in Criminal Justice and Political Science at SUNY Brockport College, he hopes to attend law school next fall.

Sandra Cassidy is a new VDP Staff Attorney. She brings to this position a wide range of experiences. A graduate of Gerry Spence’s Trial Lawyers College, Sandy has been an adjunct professor of criminal law, and also a medical malpractice attorney, prosecutor, and corporate counsel in the financial services sector. She assisted in a publishing project for People Inc. which is now carried at the Museum of DisAbility History.

For bios of all NYSDA staff, click here .