Chief Judge DiFiore Discusses Phase In to Court Operations
On May 13, 2020 the Unified Court System  announced  the reopening of some courts in 30 upstate counties. In her   May 18  message, Chief Judge Janet DiFiore said that while court personnel are returning to courthouses, this does not translate into returning to business as usual. The return coincides with the regional reopenings in many areas of upstate New York. Judge Marks released a  memo  discussing the expansion of electronic filings in non-essential matters through the New York State Electronic Filing System (NYSCEF) in certain regions, and superseded  AO/111/20  with a new order to add language: "To the extent that NYSCEF electronic filing is unavailable in courts or case types in the counties set forth in Exh. A, represented parties must commence new matters exclusively by mail." See  AO/114/20 . OCA posted an announcement earlier today that summarizes the court reopenings and the expansion of e-filing. Protocols and procedures are continuously being released. Please visit our Coronavirus resource pages where you can find such orders and  guidance . We have also added a Preliminary Hearings Resources page which includes the various protocols from judicial districts. Please contact the Backup Center for case-specific guidance, and examples of writs and pleadings that may help in your 180.80 release arguments.

Preparing for Re-opening of Law Offices and Legal Non-profits
The State’s regional re-opening plan is comprised of four phases. Phase I, which includes construction, agriculture, manufacturing, and other industries, has started in seven regions. Professional services, including legal services that have not been deemed essential, fall into Phase II . Standards and guidance on re-opening offices is available from federal and state agencies, as well as other entities. We have collected a number of these resources on our new Office Re-Opening Resources page. We hope that our members and others find this useful.

List of Essential Criminal and Family Court Proceedings Remains the Same under Amended Administrative Order
Chief Administrative Judge Marks released AO/99/20 , effective May 18, 2020, that adds Surrogate’s Court and matters relating to individuals who have died of COVID-19 to the list of essential proceedings contained in AO/78/20 . The relevant portions regarding criminal and family court remained the same.

Well-Being Help for Lawyers: Be Well to Help Others
As the COVID-19 pandemic continues, making constant change the only constant in public defense practice, many lawyers face more stress than ever. To help lawyers manage their own well-being so they can keep helping others, NYSDA has added a Coronavirus 2020 Self-Care and Helping Others page under our main Coronavirus webpage (under the drop-down “More in this Section” area). NYSDA’s direct defender services have long offered solo practitioners and others an opportunity to discuss issues with experienced colleagues; those services remain available during this period of increased isolation due to working remotely (see Association News for contact details).
 
Disability Rights New York is Available to Those with Disabilities
Disability Rights New York (DRNY) recently reached out to NYSDA, out of a concern that those with disabilities may be getting overlooked in these COVID-19 times. DRNY asked us to share their information so that anyone who has a client, regardless of age, who is not getting the services they need or is being discriminated against, knows that DRNY may be able to help. DRNY is an independent protection and advocacy system for New York State. They advocate for the rights of adults and youth with disabilities, engage in impact litigation and individual representation, and investigate instances of abuse and neglect. You can learn more about DRNY here: https://www.drny.org/ . They note the following:
 
During these rapidly changing times, hearing from you helps DRNY to direct its resources to where we can be most effective with respect to our clients-- people with serious mental illness and other disabilities in the community and also those living in youth facilities, jails and prisons, homeless shelters, and other congregate facilities.
 
DRNY is eager to hear from individuals, as well as their attorneys and families, about concerns related to their health and safety, and disability-based discrimination. Some of the particular issues we work to address include:
 
  • Access to mental health treatment in facilities, and restraint and seclusion practices;
  • Delays/refusals of admission to residential or treatment programs, and the effects on placement, sentencing, bail, and parole decisions;
  • Ensuring mental health and disability related needs are addressed for individuals under COVID-19 isolation and quarantine in facilities;
  • Arrests and charges brought against individuals in treatment programs, facilities, or hospitals, for behaviors related to their disability or mental illness;
  • Youth’s access to special education services while in facilities;
  • Access to accessible technology to make court appearance or contact attorneys, families, teachers and treatment providers.
 
If you have concerns you would like to share, contact DRNY staff attorney Teresa Caturano at Teresa.Caturano@drny.org or 518-512-4933 . Please share DRNY’s intake information with your clients and their families: call: 800-993-8982; email: intake@drny.org ; or write to us and mark the envelope as legal mail: DISABILITY RIGHTS NEW YORK, 725 Broadway, Suite 450, Albany, NY 12207-5001.
 
DRNY looks forward to hearing from you and to working together to advocate for the rights of our clients. Stay Well.
 
Non-COVID-19 News

New Discovery Provisions Took Effect May 3, 2020
While defenders have been adapting to the newly enacted discovery laws since Jan. 1, 2020, the recent adjustments to CPL article 245 went into effect on May 3, 2020, as noted in our Apr. 8, 2020, edition . Some of the changes include the timelines for initial disclosure; disclosure for persons in custody must be made in 20 days and disclosure for those out of custody must be made in 35 days. Voluminous discovery (body camera footage, surveillance, and dashboard camera video) may be stayed an additional 30 days without motion. For simplified information and traffic infractions, discovery must be turned over no later than 15 days before trial, but note the defense may still make a request for earlier disclosure.

Protective orders have now been expanded, and there are items which have been previously disclosed that are now subject to more limitations and later disclosure requirements including 911 calls, complaining witness contact information, and 911 caller information. There have also been changes to expert witness disclosures, including providing only a list of proficiency tests and results, instead of the substantive tests.

Please note, we have heard reports that DA’s are interpreting the changes to default to not turning over 911 audio recordings to defense counsel. Attorneys should be prepared to push back and litigate on that practice, as the changes to CPL article 245 only allow some limitation on disclosure after applying for a protective order and upon a good cause showing. At a minimum, defense counsel should be afforded the opportunity to listen to the audio recording. Relying solely on a DA transcript of the audio is unacceptable. 

Please note this is just a brief synopsis of the changes. If you would like specific guidance on cases, please contact the Backup Center . 

NYSDA has been hosting webinars on bail and discovery changes. Information on future trainings can be viewed on our Training Calendar . We’d like to thank Jill Paperno and John Bradley from the Monroe County Public Defender’s Office for being instrumental in providing updated materials and training on these specific changes.

Albany Supreme Court Dismisses Case on 30.30 Grounds, Finds CPL Article 245 Applies to Cases Pending Prior to Jan. 1
The decision in People v. Snyder , relating to speedy trial and discovery deadlines, was entered on May 15, 2020, in the Supreme Court of Albany County. Judge Breslin discusses CPL article 245 as it relates to cases filed before January 1, 2020: “the Court informed the parties that it interpreted the new law to retroactively apply to this long outstanding matter as of January 1, 2020 (see Statutes § 55; see People v Appling , Kings Supreme Ct. Sciarrino, J. [Jan. 6, 2020]).” The court found that the prosecution’s prior statements of readiness were illusory, in particular when at the close of a scheduled trial appearance in December, the prosecution failed to turn over various items of discovery: “the Court noted that the People were not ready for trial and that the prosecutor’s outstanding responses (bill of particulars, amended Molineux proffer, pre-trial submission responses, discovery and potential attendant Civil Rights § 50-a litigation), made scheduling a new trial date impossible at the time.” 

The case was discussed in a Times Union article on May 14, 2020 . “ In a scathing criticism of Albany County prosecutors, the judge’s decision said District Attorney David Soares’ office failed to meet ‘speedy trial’ rules, which require the prosecution to be ready for trial within six months of filing an accusatory charge against a defendant.” The article further explained that “[o]n Jan. 20, County Judge William Carter, who had the case at the time, said he believed the discovery rules would be retroactive. In Breslin’s decision, he stated that ‘as of Dec. 20, 2019, that became the law of this case’ and that prosecutors ignored it.”

DOCCS May Not Countermand Judicially-Ordered Shock
In describing the 2009 amendments to the Rockefeller Drug Laws that eased several of the draconian punishments of those laws, NYSDA training materials noted the following as to first felony drug and marijuana offenses. “The court may also order the client directly placed in the SHOCK incarceration program.” Given the clear language of the statute as to judicially-ordered shock, no caveats or cautions were provided. Yet, years later, it appears that the Department of Correction and Community Supervision (DOCCS) has been interposing its own “interpretation” of the statute to thwart judicially-ordered shock in some cases. The Third Department has made clear that this is wrong. The court held in Matter of Matzell v Annucci (2020 NY Slip Op 01425 [2/27/2020]) that where a court, under Penal Law 60.04(7), sentences a person to the shock incarceration program, “DOCCS is limited to determining only whether a judicially sentenced shock incarceration inmate ‘has a medical or mental health condition that [would] render the inmate unable to successfully complete the ... program’ (Correction Law § 867 [2-a]).”

Several Sources of Appellate Information Near at Hand
The Matzell decision above is summarized on the New York Appellate Digest website, one of several sources that defenders can access seeking information about appellate cases. The Appellate Digest allows searching decisions by a number of categories including Family Law and Criminal Law, and covers all four Appellate Divisions and the Court of Appeals.

Summarized Decisions of Interest from the NYS Office of Indigent Legal Services (ILS) appear on the ILS website some time after they are emailed to subscribers to the ILSAPP listserv. Timothy P. Murphy, Assistant Federal Public Defender (Appeals) in the Western District of New York, periodically posts Court of Appeals summaries on that listserv and is a frequent CLE presenter for NYSDA as to recent decisions.

NYSDA reprints some ILS summaries, as well as summaries from The Legal Aid Society’s Juvenile Rights Project and Criminal Defense Practice, in its newsletter, the Public Defense Backup Center REPORT, along with summaries produced in house. NYSDA thanks all those entities for sharing their information.

Information about pending Court of Appeals cases is also available. The Center for Appellate Litigation (CAL) produces a Court of Appeals Update, which is posted on CAL’s website.

CAL’s “Issues to Develop at Trial" Notes Challenges to Search Warrants for Cell Phones, Etc.
The March 2020 edition of CAL’s newsletter, Issues to Develop at Trial , covers challenges to search warrants of cell phones and social media/computer files, and robust probable cause. CAL notes that warrants may violate the Warrants Clause of the state and federal constitutions "in two, often interrelated, senses: ‘either by seeking specific material as to which no probable cause exists, or by giving so vague a description of the material sought as to impose no meaningful boundaries.’” After describing two cases -- People v Thompson , 178 AD3d 457 (1st Dept 12/5/2019) and People v Melamed , 178 AD3d 1079 (2d Dept 12/24/2019) -- CAL provides a list of “takeaways” for defense lawyers to consider.

Prior editions of Issues to Develop at Trial are available at https://www.appellate-litigation.org/issues-to-develop-at-trial/ . NYSDA thanks CAL for sharing this resource.
 
Standards of Civility Amended
The Judicial Departments of the Appellate Division amended 22 NYCRR 1200, Appendix A (Rules of Professional Conduct, Standards of Civility ), on Jan. 24, 2020. These principles of behavior to which the bar, bench, and court employees should aspire are not enforceable rules but guidelines to encourage civility and decorum. Below are highlights of the amendments.
 
The directive to promptly return phone calls and answer correspondence was expanded and clarified to specifically include electronic communication; was limited to communications regarding matters in which the lawyer is engaged; and was clarified to allow discretion in the manner and time of responses. The admonition not to mislead others is no longer limited to the litigation process. An added Section 2 specifically addresses "Transactional/Non-Litigation Settings." The added provisions include instructions to "balance the requirements and direction of the client in terms of timing with a reasonable solicitude for other parties," to "focus on the importance of politeness and decorum," and, while an agreement or proposal is still tentative, to "be careful not to proceed without proper authorization" or imply that the client's authorization has been obtained when it has not.


Association News

NYSDA: Available to Assist Defenders across the State
The entire legal staff of NYSDA, while working remotely, remain available to assist public defense lawyers across the state not just with COVID-19 questions but the full panoply of issues that defenders face. Whether the need is research on a new or unusual issue, consultation on a difficult strategy question, information on current advocacy efforts to improve systemic deficiencies, or help identifying potential experts, attorneys at the Backup Center stand ready to help. They may be reached by phone, email, or through the website. Not all staff are able to have calls forwarded to their homes, but phone messages can be left via the main number -- (518) 465-3524 -- on the general voicemail or by using the spell-by-name directory to access the voicemail of individual staff members. The general email address is info@nysda.org . The website contact form is at https://www.nysda.org/general/?type=CONTACT .
 
Attorneys representing military personnel or veterans can reach the Veterans Defense Program (VDP) staff using the website https://www.nysda.org/page/VDPContactUsForm.
 
The Public Defense Case Management System (PDCMS) staff can be reached at (518) 465-3 524, Option 3, or at pdcmssupport@nysda.org .
 
NYSDA appreciates the valiant work being done by defenders across the state who are providing client-centered representation in the current challenging circumstances.
 
Upcoming Webinars for the Week of May 25th
With in-person training events canceled due to the continuing effort to contain the COVID-19 outbreak, NYSDA has been conducting regular weekly family and criminal CLE webinars. Next week is no exception. The upcoming week will see two trainings: On Thursday, May 28 th,   Noemi Cotto  and  Karen Leve  from the Bronx Defenders, will again be presenting  Strategizing Supervised Visitation in These COVID-19 Days  for anyone who missed this popular program at the end of April ( register here ). Please note we cannot give duplicate credit, if you choose to attend this program a second time. On Friday, May 29 th, Sophie Feal,  Supervising Immigration Attorney of the Western New York Regional Immigration Assistance Center at the Legal Aid Bureau of Buffalo, and  Roshell Amezcua  from The Bronx Defenders, will be presenting  Protecting Immigrant Clients within COVID-19   Practice Constraints  ( register here ) .  The cost to attend each of these programs is $25. If you have questions or need additional information, please contact our training team, led by our Training Manager, Megan O’Toole, at  training@nysda.org .
 
Stay tuned for more trainings in June on family and criminal court discovery, defending against allegations of family court contempt, veteran defense, and more. Please check the NY Statewide Public Defense Training Calendar for offerings from NYSDA and others.