May 9th Was Effective Date for New Laws
Several of the new laws and amendments passed as part of the state budget became effective on May 9th. Among those, as reported in the April 13th edition of News Picks, are changes to bail and discovery provisions. Also effective on that date were changes to Penal Law 265.12 and 265.13 (criminal sale of a firearm in the first and second degree), reducing the number of firearms that must be involved, from five to two (265.12) and from ten to three (265.13) in the requisite one-year period.
 
Regs Allowing Familial DNA Search of NYS Databank Struck Down
In Matter of Stevens v NYS Div. of Criminal Justice Servs., the First Department struck down the familial DNA search regulations codified at 9 NYCRR 6192.1 and 6192.3. Blood relatives of people whose genetic profiles are included in the statewide DNA database created by Exec Law 995 et seq challenged the regulations in a CPLR article 78 proceeding. The First Department found “that the overwhelming policy issues inherent in authorizing the use and limitations upon familial match searches of DNA information collected in the New York State databank warrants a conclusion that it is an inherently legislative function and that the challenged regulation cannot stand.”
         
The opinion also dealt with the issue of standing, in which the issue of race was raised. The petitioners had asserted “that because they are persons of color, their risk of being investigated is greater than the general population, based upon the disproportionate number of people of color in the databank.” The court said that “the heightened risk of police encounters, along with resulting fear and anxiety, establish a cognizable injury sufficient to confer standing.” Dissenting judges Singh and Oing would have reversed on the threshold determination that the petitioners had standing.
 
The decision is featured on The Legal Aid Society website. See media coverage here (The Gothamist) and here (APNews.com) and in the New York Law Journal here (discussing immediate efforts by the Suffolk County District Attorney to get the Legislature to enact a bill authorizing familial DNA searches).
 
Law Review Article: “Challenging Jurors’ Racism”
The Abstract of the above-named forthcoming Gonzaga Law Review article says it “[a]ttempts to assist judges and attorneys in their efforts to select an impartial jury by equipping them with a better understanding of different forms of racism (e.g., overt, covert, symbolic, aversive) as well as providing an introduction to insightful psychometric tools that can be used to prioritize the selection of anti-racist jurors, identify prospective jurors who may hold implicit and explicit biases, or identify those who are likely to be impartial in their assessment of the case.” It seeks to assist “in the elimination of racism during the jury selection process in three ways.” One, offering a “deeper understanding of which sort of validated psychological tools can help identify implicit, as opposed to explicit, racial bias.” Two, looking at for-cause and peremptory challenges and providing suggested questions in its appendices. Three, presenting ways to identify prospective “jurors, of any race, who hold dominative and modern racist views.” The article seeks to present research that “can serve as a starting point for statutory legal reform,” while acknowledging the need for even better tools. Other resources include the March 2021 and March 2022 editions of the Center for Appellate Litigation’s Issues to Develop at Trial.
 
If defenders in the field use questions and concepts from this law review article or the Center for Appellate Litigation’s publications on the topic, NYSDA encourages them to provide feedback to the Backup Center.
 
New Domestic Violence Survivors Justice Act (DVSJA) Resource Guide Now Available
NYSDA is proud to share The Survivors Justice Project (SJP) new DVSJA Resource Guide. The guide is available from SJP’s website and NYSDA’s DVSJA webpage.
 
This guide was written for people applying for either sentencing or resentencing under the DVSJA and hopes to:
  • demystify the law;
  • support survivors in identifying their needs;
  • help survivors create and take ownership of their personal narrative; and
  • extend links to resources to strengthen the ability to use the DVSJA.
 
Attorneys, judges, prosecutors, service providers/advocates, jail/prison staff, and others can also use this guide to learn more about the DVSJA and working with survivors of domestic violence who have been arrested, prosecuted, or sentenced.
 
Thanks to the generous support of Davis Polk & Wardell LLP, the SJP will be providing copies of the guide to people in prison. If you have a contact in jail or prison in New York who would be interested in this guide, please contact the SJP.
 
To learn more about SJP’s work, visit their website, www.sjpny.org/. For assistance with DVSJA cases, you are welcome to contact NYSDA’s DVSJA Attorney Support Project.
 
As a reminder, The DVSJA Statewide Task Force is surveying defenders regarding DVSJA sentencing practices in new cases and resentencing cases under CPL 440.47. We encourage defenders to complete this brief, 10-question survey.
 
National Institute of Standards and Technology (NIST) Publishes Digital Investigation Techniques: A NIST Scientific Foundation Review
NIST issued a Press Release on May 10th publishing Digital Investigation Techniques: A NIST Scientific Foundation Review. This draft report, which will be open for public comment for 60 days, reviews the methods that digital forensic experts use to analyze evidence from computers, mobile phones, and other electronic devices.
 
The release further explains: “NIST scientific foundation reviews help laboratories identify appropriate limitations on the use of forensic methods, identify priorities for future research, and suggest steps for moving the field forward. These reviews are conducted as part of NIST’s Forensic Science Program, which works to strengthen forensic practice through research and improved standards. In 2018 Congress directed NIST to conduct these scientific reviews and appropriated funding for them.”
 
NIST is welcoming public comments on the draft report through July 11, 2022, and will host a webinar about the draft report on June 1, 2022, from 1:00 – 3:00 pm. Instructions for submitting comments and registration information for the webinar are available on the NIST website.
 
A Judge Finally Called BS on ‘Shaken Baby Syndrome’
The Appeal published an article with the above title on May 4th. The case discussed in the article came out of New Jersey, where Judge Jimenez “wrote that the diagnosis of Shaken Baby Syndrome, also known as Abusive Head Trauma, is ‘an assumption packaged as a medical diagnosis’ and ‘lacks scientific grounding.’” The judge further said, “‘[n]o study has ever validated the hypothesis that shaking a child can cause the triad of symptoms associated with AHT” .… This diagnosis is akin to ‘junk science.’” Resources regarding Shaken Baby Syndrome and other forensic evidence are available on NYSDA's Forensics Resources page.

Greene County Sheriff’s Office Moves Closer to Body-Worn Cameras
In early May, the Greene County Legislature’s Public Safety Committee approved funding for the county sheriff’s office to be outfitted with body-worn cameras. Unfortunately, Greene County Administrator Shaun Groden’s interest in the technology leaves something to be desired - “I think more often than not it exonerates an officer versus not. Particularly with the car cameras, because we’ll have one that actually shoots to the back seat,” Groden was quoted in Hudson Valley 360, “So if you try to bang your head against the back window and they say, ‘Hey I got beat up.’ It’s going to be filmed.”
 
The quoted cost is $250,000, yet Groden acknowledged the costs will be greater. “At the end of an officer’s shift, [the footage] has to be downloaded and somebody has to come in and slice and dice it. If you get arrested it has to go to the district attorney and the public defender and under discovery rules it has to go to the defense attorneys. So it’s more than just the camera, the back of the house will be really big. I’ll have to hire a person for this.” The measure will now move on to the full legislature for a final vote.
 
In September 2015, the Municipal Police Training Council approved a body-worn camera model policy, which is available on the NYS Division of Criminal Justice Services’ website. Each police agency that uses body-warn cameras should have a policy. The New York State Police Department’s program is governed by Executive Law 234 and the State Police policy is available here. Other examples of policies include the NYPD policy, Monroe County Office of the Sheriff policy, Binghamton Police Department policy, and White Plains Police Department policy.
 
Family Court Perspective: “Separate Courts Are Inherently Unequal”
An article by the New York City Family Court Judges Association, published on May 11th in the New York Law Journal, states: “[s]ome have argued that the solution to Family Court’s problems is to give us more resources without restructuring the court system. But in the current inequitable structure, Family Court is seen as lesser, and in any debate over resource allocation, the group seen as ‘supreme’ will win out. When the people of the state speak in favor of court simplification, it will provide Family Court the leverage and status that it has never had before to get the resources that we need. A change in culture will follow and flow from a change in the structure of the court system.”
 
DOCCS (Re)Launches “Pilot” Package Program
The Department of Corrections and Community Supervision (DOCCS) has posted a plan to revise its policy concerning the receipt of packages. “Upon complete implementation, packages and articles will only be allowed to be received directly from vendors via U.S. Postal Service, FedEx, UPS, etc. Packages will no longer be allowed to be brought to the facility during visits or mailed directly to the facility from family or friends.” A “pilot” of this change “will begin in the Wende Hub, including Albion, Attica, Collins, Groveland, Lakeview, Orleans, Wende and Wyoming Correctional Facilities.” The website DIYRootsAction notes that a similar effort in January 2018 was thwarted, sets out the reasons why personal packages, not vendor-restricted ones, matter, and calls for “No Package Restrictions for NYS Prisoners-2022!”
 
NYPD Federal Monitor Reports Drop in Stops, But Racial Disparities Remain
The sixteenth report of the independent NYPD monitor stemming from the Floyd, Ligon, and Davis cases was released on May 6th. The report found that 29% of stops were not properly documented, but that of the data they had access to, in 2020 86% of stops and 92% of frisks were “compliant.”
 
In a press release, the NYPD classified the report as showing “great strides” in compliance, noting that “[s]ince the time a decade ago when hundreds of thousands of stops were made a year, today, stops have been reduced by 97%.”
 
Talking to The Gothamist, Baher Azmy of the Center for Constitutional Rights pointed out that 88% of the stops made in the last quarter of 2021 were of Black and Latinx people. “[W]hat persists is both an under-reporting of stop and frisks by police officers and a persistence in racial disparities.” The under-reporting here is a reminder that data used in discussions about law enforcement policy is often controlled by law-enforcement personnel and should be carefully examined.



Association News


NYSDA Is Growing! Team Leader: Discovery & Forensic Support Unit
We are excited to announce that we are hiring a Team Leader for NYSDA’s new statewide defender Discovery and Forensic Support Unit. The job posting is on our website at NYSDA Jobs. We are excited to begin the process of expanding our Backup Center to offer more resources and high quality training to assist defense teams across the state. As always, NYSDA welcomes input on the type of support you need and, as we develop the unit, comments are welcomed at info@nysda.org.
 
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.