New York State Budget Update

While the Budget was almost one month overdue, there were increased amounts in budgetary items for public defense previewed below. NYSDA’s summary of the Budget written by Executive Director Susan Bryant can be viewed here.

NYSDA is grateful to the defender community, as well as for the joint lobbying efforts of the Chief Defender Association of New York and the New York State Association of Criminal Defense Lawyers, who together, advocated for increased funding as was previously reported in News Picks from NYSDA Staff on March 28, 2023. Our joint efforts calling on legislators to not compromise staved off momentum created by District Attorneys to make substantive changes to the discovery law. Fortunately, no changes to discovery were made in the budget, but there were changes made to bail, discussed below the budgetary items. 

Indigent Legal Services Aid to Localities $461,310,000 [S.4003-D/A.3003-D (pp. 1035-1046)] which includes:

• $81 million for counties and NYC
• $23,810,000 for implementation of the Hurrell-Harring settlement in the five lawsuit counties
• $250 million for Hurrell-Harring statewide expansion
• $14.5 million for family court representation under County Law 18-b
• $92 million for 50% of the assigned counsel rate increase

Family Defense Representation: The final budget includes $14.5 million for family defense representation.

Assigned Counsel Rate Increase: The final budget includes a one-time appropriation of $92 million for assigned counsel rates contributed by the state to offset the difference in cost to the counties (state’s contribution is for 2023-2024). The increased assigned counsel rate, including for attorneys handling Felonies/Family Court and Misdemeanors/Violations, is $158 retroactive to April 1, 2023. 

*New Criminal Defense Services Funding $40,000,000 [S.4003-D/A.3003-D (p. 111)]

For defense service and expenses incurred by government agencies and not-for-profits. Funds shall be distributed pursuant to a plan prepared by the DCJS Commissioner and approved by the Division of Budget.

*New Criminal Defense Discovery Funding $40,000,000 [S.4003-D/A.3003-D (p.110-111)] For defense services and expenses related to discovery implementation, including but not limited to digital evidence transmission technology, administrative support, computers, hardware and operating software, data connectivity, development of training materials, staff training, overtime costs, and litigation readiness. Eligible entities shall include, but not be limited to, government entities and non-for-profits that provide defense services. These funds shall be distributed pursuant to a plan prepared by the DCJS Commissioner and approved by the Division of Budget.

Discovery Funding for Prosecution & LE $80,000,000 [S.4003-D/A.3003-D (pp. 109-110)] $40 million for New York City prosecutors and $40 million for prosecutors and law enforcement outside of New York City.

Capital Funding for Discovery in New York City $50,000,000 [S.4004-D/A.3004-D (p. 115)] For NYC services, expenses, and grants related to the acquisition and development of technology to support discovery, including but not limited to, equipment, software, hardware, and consulting services.

Prosecutorial Services Funding $47,000,000 [S.4003-D/A.3003-D (pp. 110)]

Up to $7 million shall be available “for the creation of specialized units to shut down fentanyl supply chains and increased prosecution in cases of overdose deaths.”

Office of Indigent Legal Services $7,250,000 [S.4000-B/A.3000-B (pp. 509-510)]

Indigent Parolee Program $600,000 [S.4003-D/A.3003-D (p. 123-124)]

Similar to last year, there is not a dedicated appropriation for the IPP. Parole is mentioned as one of the categories for funding in an appropriation of $1,370,000, and we expect that $600,000 will be allocated to IPP by the Senate in a separate resolution.

New York State Defenders Association (NYSDA) $3,850,000 [S.4003-D/A.3003-D (pp. 114, 120, 1252)] The $3,850,000 appropriation for NYSDA includes $3,130,000 for the Public Defense Backup Center and $720,000 for the Veterans Defense Program (VDP). This is the same amount as NYSDA received last year.

From all of us at NYSDA, thank you to the public defenders, veterans groups, and others who supported our funding request! We couldn’t have done it without you.

Budget Amends Bail Statute

As discussed in the February 14th edition of News Picks, one of the Governor’s stated goals in her proposed Executive Budget was to include dangerousness in CPL 510.10. Thankfully the final budget language is considerably more muted. Though there are a good deal of circuitous additions, judges end up with the same basic constraints as they have now. Neither “dangerousness” nor risk of reoffending were added, and there are no additions to the types of bail-eligible qualifying offenses.

The term “discretion” is added for the first time, but it does not function in the manner the Governor originally suggested. The statute now allows judges “the discretion” to impose “specific types of securing orders” that are “in accordance with the principles” of the statute. But of course, since there is no increase in the types of cases that are bail-eligible, this new discretionary language is redundant; judges always had discretion to impose bail on cases that were bail-eligible. 

The other primary change is the elimination of the statutory language that judges impose the “least restrictive” conditions necessary. The new language instead instructs the court to “consider the kind and degree of control or restriction necessary to reasonably assure [client’s] return to court…” That language is not actually new but is the same standard that existed before 510.10 was amended in 2020. 

While on its face that language might look unappealing, there are good arguments that the “least restrictive” standard is still in place. Only imposing a restriction that is necessary means release is still compulsory unless another type of securing is required - which is just a longer-winded way of saying “least restrictive.” And of course, the standard from the U.S. Supreme Court in Salerno remains that bail cannot be set at an amount excessive to prevent flight.

There is also new language that allows courts to impose “non-monetary conditions” in addition to bail. While this could be used to unnecessarily add mandated programming for clients, it can also be used to secure lower monetary conditions when paired with conditions that are actually practical for clients to comply with. These changes go into effect on June 2, 2023.

News coverage of the bail changes include Gothamist, Times Union, Buffalo News “After fight that delayed state budget, Hochul says, 'We are done with bail.”

NYSDA and Defenders Advocating for Bills as Legislative Session Winds Down

NYSDA continues to support the passage of bills, including Clean Slate, Treatment Not Jails, Fair and Timely, Elder Parole and several bills impacting parental and family representation as the legislative session winds down. On May 16^th, NYSDA joined with allies for Family Advocacy Day, for the passage of four key bills aimed to protect families. NYSDA on Twitter: "NYSDA is proud to stand with our partners throughout the state to call for the passage of 4 bills that will keep families safer together!"

Sarah Duggan, Manager of Communications and Storytelling at JMacForFamilies wrote an article published in The Appeal discussing the Family Miranda bill. She explains that “[F]amily Miranda requirements will not end the horrors of the family policing system. As we’ve seen in the criminal legal system, Miranda rights have not stopped police from terrorizing, criminalizing, and murdering people nationwide. Informing people of their rights is simply the bare minimum”.

We will provide updates once they become available. If you have any questions on the budget or proposed legislation, please reach out to the Backup Center at info@nysda.org.

NYSDA thanks defenders who signed onto the letters in support of no rollbacks to bail and discovery. The sign on letter surpassed one thousand signatures and we are so grateful and proud of the support defenders provided in the final moments before budget. 

Appellate Term Decision Illustrates Provision of Counsel Problems

A loss for the defense in the Appellate Term, Second Department, illustrates ongoing issues around timely provision of counsel. On Sept. 19, 2020, the defendant in People v Galante (2023 NY Slip Op 23096 [3/30/2023]) was issued a desk appearance ticket for a court appearance on October 9th. On that date, the court appointed "temporary counsel" for arraignment. A not-guilty plea was entered; the court advised the defendant to retain counsel and adjourned the case one month for that purpose. When the defendant said on November 9th that he could not afford a lawyer, counsel was appointed and the matter adjourned another month. On December 9th a further adjournment, to January 22, 2021, was ordered. Various filings ensued, and the court found time chargeable to the prosecution had exceeded the time allowed under CPL 30.30. The Appellate Term reversed, finding that the periods of exclusion under 30.30(4)(b) and (f) applied. Notably, the court said that "the 31-day period from October 9 to November 9, 2020[,] is excludable because 'defendant [was] without counsel through no fault of the court" …. The matter was remitted for consideration of other issues including challenges to the prosecution's certificates of readiness.

The decision does not indicate whether the arraignment court conducted a determination of the defendant's financial eligibility for counsel. If the court, which appointed "temporary counsel" for arraignment, made no determination and the defendant was eligible as of October 9th, then the month-long adjournment for the defendant to retain counsel should have been deemed the fault of the court.

NYSDA hears too often of instances in which eligibility is presumed or ignored at arraignment, and counsel provided, but representation is not continued beyond that date. The need for counsel at first appearance is critical (as noted in, for example, the Office of Indigent Legal Services Office (ILS) Standards for Determining Financial Eligibility for Assigned Counsel [2021], Standard III). But representation immediately after arraignment is also vital. Delay in appointment can "interfere with prompt investigation, early witness location, and crime scene preservation," as NYSDA noted in its 2015 Statement on the Criteria and Procedures for Determining Eligibility in New York State (p. 10). Counsel at arraignment should, "at the very least, identify the need for time-sensitive investigations, possible witnesses and subpoenas," (see ILS, Statewide Plan for Implementing Counsel at Arraignment: Year Four Report [Sept. 30, 2022] [p. 10]). But "identifying" needs accomplishes little if the identified time-sensitive actions cannot be taken until later appointment of counsel for the rest of the case. Lack of counsel after arraignment can lead to delays in defense receipt of discovery (because there is no known attorney for the prosecution to send it to or arraignment counsel refuses to accept it, as occurs in some jurisdictions). Individuals deprived of the assistance and advice of counsel for weeks or more after arraignment may give up and plead guilty at the next court date.

Domestic Violence Survivors Justice Act (DVSJA) and START Act News

DVSJA Act Statewide Task Force Releases New Investigative Practice Guide

The Statewide Domestic Violence Survivors Justice Act (DVSJA) Task Force has released a new investigative practice guide for attorneys working on DVSJA resentencing matters: “Investigations Under the Domestic Violence Survivors Justice Act: A Best Practices Manual for Defense Attorneys”. The new publication offers guidance for defense attorneys, social workers, and other advocates assisting domestic violence survivors seeking resentencing under CPL 440.47. The manual covers how to approach a new case at initiation, work collaboratively with clients, and identify and address strategic questions that arise.

Fourth Department Modifies and Reduces Sentence to Apply PL 60.12 Guidelines

In People v Taylor Partlow, _AD3d_ (KA 19-02168 May 89, 2023), the Appellate Division, Fourth Department modified and reduced a sentence in a Manslaughter in the First Degree case holding: “we conclude that a preponderance of the evidence supports both a finding that defendant was a victim of domestic violence during her relationship with the victim and was subjected to “substantial physical, sexual or psychological abuse” and a finding that “such abuse was a significant contributing factor to the defendant’s criminal behavior” … We further conclude that sentencing defendant pursuant to the normal sentencing guidelines would be “unduly harsh” in light of the “nature and circumstances of the crime and the history, character and condition of the defendant”. We therefore modify the judgment on the facts and as a matter of discretion in the interest of justice by reducing defendant’s sentence to a determinate term of incarceration of four years to be followed by 2½ years of postrelease supervision…" (Internal citations omitted.) The case is available on NYSDA’s DVSJA Resources webpage.

START ACT Practice Advisory Available

In related news to the DVSJA, The Exploitation Intervention Project of The Legal Aid Society – Criminal Defense Practice has released a Practice Advisory for attorneys working on cases under the November 2021 amendments to New York’s START Act (Survivors of Trafficking Attaining Relief Together), which expanded New York’s “trafficking vacatur” statute in C.P.L. §440.10(1)(i). The advisory, The START Act – Expanded Criminal Record Relief for Trafficked Individuals, helps attorneys identify who is eligible for relief, things to look for in the case, marshals some of the primary applicable statutes, and identifies resources for continuing assistance. The guide is available on NYSDA’s DVSJA Resources webpage and Criminal Defense Resources webpage. 

Attorneys are reminded that information and resources are available on NYSDA’s DVSJA Resources webpage; anyone seeking particular assistance or resources are encouraged to reach out to NYSDA’s DVSJA Attorney Support Project by contacting Senior Staff Attorney Stephanie Batcheller at SJBatcheller@nysda.org or (518) 465-3524 x 41.

Data Collaborative for Justice Releases Report May 2023

This month, the Data Collaborative for Justice released a new report, Criminal Convictions in New York State, 1980-2021 - Data Collaborative for Justice. They explain, from “1980 to 2021, just over 6.6 million New York criminal cases impacting nearly 2.2 million people ended in a conviction. The purpose of this study is to examine criminal convictions and attendant racial disparities in New York State from 1980 to 2021. This research brief expands on an earlier Data Collaborative for Justice study: Criminal Conviction Records in New York City (1980-2019).” In addition to the report. There are maps (available here) “indicating, for each county in the recent pre-COVID year of 2019, overall conviction numbers, conviction rates per 1,000 people in the population, and racial disparities in conviction rates.”

FCC to Require Video Communication Services for Incarcerated People Unable to Hear

On March 21st, The Marshall Project reported that the Federal Communications Commission (FCC) is ordering phone companies that serve prisons, "jails, immigration detention, juvenile detention, and secure mental health facilities nationwide" to provide video communications services for "deaf and hard of hearing" people in those facilities. The directive also covers people with speech disabilities. The new rule, FCC-22-76, becomes effective in January 2024; it is available here. The report released with the new rule on September 29, 2022, notes that "[b]ecause functionally equivalent means of communication with the outside world are often unavailable to incarcerated people with communication disabilities," they "are effectively trapped in a prison within a prison."

Deafness and Communication Issues Can Affect Clients' Cases

NYSDA seeks to assist lawyers with issues arising for clients with communication challenges. A hearing disability may figure directly in a client's case ("he didn't hear the order to stop"; "their hearing loss does not prevent them from being good parent"; "she needs specific services to successfully complete required programming") as well as impact conditions of confinement. It can also affect client-attorney communication and relationships. The training that NYSDA co-presented this last February on "Communicating with Clients of Limited English Proficiency" included a session on "Unique Needs of the Deaf and Hard of Hearing." The materials touched on Deaf Access Services (DAS) and facts on deafness and hearing loss (including types of hearing loss and the "Spectrum of Deafness") as well as deaf education; the "battle" between use of American Sign Language and speech; technology; and legal obligations. Attendees were also informed about issues around deaf identity (deaf culture), understanding of which can improve communication.

Hearing loss can be congenital or caused by a variety of factors. "Hearing problems—including tinnitus, which is a perceived ringing or other type of noise in the ears—are by far the most prevalent service-connected disability among Veterans," according to factsheet from the federal Department of Veterans Affairs. The difficulties in communication posed by complete or partial deafness may be increased by the failure by educational institutions to address them. (A U.S. Supreme Court case on March 21st highlighted such failure, see Perez v Sturgis Public Schools, noted on ABCNews.com.) Obviously, such communication difficulty can affect many aspects of legal proceedings.

The Unified Court System has some information about court resources for people who are deaf or have limited hearing. Check both the page regarding "accessibility" and that regarding "language access and court interpreters." Attorneys representing clients with hearing problems are encouraged to contact the Backup Center or, if the client is a veteran or active military personnel, VDP.

"Public Defenders Office FAQ" on Autism Available

The Autism Society of America (Autism Society) and Legal Reform for People with Intellectual and Developmental Disabilities (LRIDD) announced in April their publication of an "FAQ" brochure. It offers brief answers to some common questions attorneys may have when representing clients with autism. It includes some items to consider in each of the following categories: signs of autism; accommodations that clients with autism may need; factors that might increase the likelihood of criminal legal system involvement; questions to ask, and issues to consider. Resource links include publications by Mark Mahoney, who presented a CLE session on autism at NYSDA's 2022 Annual Conference.

People diagnosed as being on the autism spectrum are not a monolithic group. For example, as was discussed in the June-October 2022 issue of the REPORT, different individuals with autism (and their families) may have different preferences about how they are described. And autism is not the only factor that will affect clients' cases. Other characteristics and circumstances—education, family and community, race, gender, childhood experiences, etc.—will have separate and/or intersectional effects. A page about "Obstacles Black Autistic Individuals Face" can be found on the American Autism Association's website. Such national or local support groups may provide information for lawyers or clients. Family defenders whose Black clients have children with autism may want to look into groups like Autism in Black.

SCOC Revises Reportable Incident Manual

Lawyers with clients in jail, and anyone interested in the duty of jails to report specific types of "incidents" to the State Commission of Correction (SCOC), may want to look at the revised "Reportable Incident Manual for County Jails and The New York City Department of Correction." Information about the SCOC was included in the April 17th edition of News Picks.

The New York Community Trust Announces $5.7 Million in Grants to Support New York Nonprofits

 “The New York Community Trust…announced $5.7 million in grants to 33 nonprofits that are working to improve lives across the five boroughs, Westchester and Long Island.” The funding will support agencies working on an array of issues meant to support New Yorkers, including behavioral health, people with disabilities, older adults, education, human justice, human services, jobs and workforce development, youth development, arts and culture, conservation and environment, technical assistance, and community development. The notable award grants include $175,000 to the Youth Justice Network, “to help formerly incarcerated youth successfully transition back to their home communities”, $300,000 to NYU “to study the effectiveness of a child maltreatment prevention program for mothers with post-traumatic stress disorder,” and $164,000 “to protect housing rights for people with disabilities in New York.” According to its website, “The New York Community Trust connects past, present, and future generous New Yorkers with vital nonprofits working to make a healthy, equitable, and thriving community for all.”

Association News

Emily Prokesch will be Leading NYSDA’s Discovery and Forensic Support Unit NYSDA is very excited to share that Emily Prokesch will be joining our staff the third week of June to lead our Discovery and Forensic Support Unit in the Backup Center.

Emily J. Prokesch serves as Vice Chair of the Legal Task Group of the Forensic Science Standards Board, serving The Organization of Scientific Area Committees for Forensic Science at the National Institute of Science and Technology. She has been a Trial Attorney at the Office of the Capital Defender in Atlanta, GA, where she represented individuals charged with capital crimes, and trains and consults on forensic litigation for the office statewide. Prior to being a Capital Defender, Ms. Prokesch was the Forensic Practice Director and member of the Homicide Practice Group at The Bronx Defenders. She was part of the Homicide Practice at the Office of Public Defender in Prince Georges County, MD. She is also Adjunct Professor at Columbia Law School, where she has taught Trial Skills & Advocacy, and Emory Law School, where she teaches Forensic Evidence.

Upcoming Training Programs

Wednesday, June 7, 2023, 1:00 – 2:00 pm: To Participate or Not to Participate: Ethical Considerations in Representing a Client Absent at Trial with Adele Fine, Family Court Bureau Chief, Monroe County Public Defender’s Office. This program will discuss the ethical considerations involved in strategizing how to proceed with a case when the client is absent from the trial or hearing. Details and registration information will be available soon.

Monday July 30 - Tuesday August 1, 2023: 56th Annual Meeting and Conference. Registration for the Annual Meeting and Conference is now open. Program highlights and registration information are available here. The event will be held at the Saratoga Hilton in downtown Saratoga Springs, with an online option for the training sessions and membership meeting. 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 be made at https://book.passkey.com/go/NYSDefendersAssn23. The conference rate is $201 for a standard room. The deadline for hotel reservations is June 26th. We look forward to seeing you in Saratoga this summer!

Save the Date: Thursday, September 28, 2023, 12:30 – 2:30 pm: Representing Disabled Parents: Strategies and Solutions for Preserving Their Rights with Robyn M. Powell, PhD, JD, Associate Professor, University of Oklahoma College of Law. Details and registration information coming soon.