CPL 245 Violations + Dismissals under CPL 30.30
To follow up on our News Picks from NYSDA Staff on May 10, 2021, on discovery and speedy trial issues, where People v Gonzalezyunga and People v Lavick were referenced, and we highlighted the CPL 190.80 release in People v Snyder, we would like to share some additional court decisions: People v Placide (Crim Ct, New York Co 5/24/2021); People v Rivera (2021 NY Slip Op 50347[U] [Crim Ct, New York Co 4/6/2021]); People v Jaquez (2021 NY Slip Op 21097 [Supreme Ct, New York Co 4/14/2021]); and People v McKinney (2021 NY Slip Op 50456[U] [Criminal Ct, Kings Co 5/19/2021).
 
Also, People v Aquino (2021 NY Slip Op 21135 [Criminal Ct, Kings Co 5/7/2021]): “In this case, the People failed to provide known discoverable material to the defendant before filing a certificate of compliance affirming that all such material had been provided. The People have not presented any factual basis that special circumstances exist under CPL 245.50 [3] for the People to be deemed ready without meeting their discovery mandate, nor that diligent efforts were made to obtain the known discovery. Moreover, the People have not shown there was a particular obstacle to obtaining the discoverable material that might qualify for a ‘good cause’ extension under CPL 245.70 [2] or to toll speedy trial under CPL 30.30 [4] [g]. Accordingly, the People’s statement of readiness filed on the 90th day was illusory.”

And, finally, People v Popko (2021 NY Slip Op 50345 [Criminal Ct, Queens Co 4/22/2021]), which states: “CPL 30.30 (5) and 30.30 (5-a) are independent subsections that both deal with the validity of the People’s statement of readiness: ‘the prosecutor’s statement or notice of readiness shall not be valid for the purposes of this section’ (CPL 30.30 [5]); ‘statement of readiness shall not be valid unless.’ (CPL 30.30 [5-a]). The plain reading of these subsections, along with CPL 245.50 (1), 245.50 (3), and 245.20, provides a new framework for what constitutes a valid statement of readiness. In order to be deemed ready for trial, the People must now file a certificate of discovery compliance, indicating that they complied with all discovery obligations enumerated in CPL 245.20 (CPL 245.50 [1] and [3]; CPL 30.30 [5]); People v Lobato, 66 Misc 3d 1230[A], 2020 NY Slip Op 50322[U] [Crim Ct, Kings County 2020]; People v Mashiyach, 70 Misc 3d 456 [Crim Ct, Kings County 2020]; People v Villamar, 69 Misc 3d 842 [Crim Ct, NY County 2020]; People v Rambally, 68 Misc 3d 1212[A], 2020 NY Slip Op 50921[U] [District Ct, Nassau County 2020]; People v Hines, 70 Misc 3d 1212[A], 2021 NY Slip Op 50050[U] [Crim Ct, Bronx County 2021]).”
 
NYCLU Sues Troy to Force Release of Police Disciplinary Records
As reported in the Times Union on May 21, 2021, the New York Civil Liberties Union (NYCLU), along with Latham & Watkins, has sued the City of Troy for withholding police disciplinary records. Melanie Trimble, Capital Region Chapter director of the NYCLU, was quoted in the article: “‘Troy residents have the right to know the substance and volume of complaints made against their officers, and the Troy Police Department cannot remain steadfast in ignoring requests for misconduct records made on behalf of the constituents they have sworn to protect and serve’ ….” Also, “‘[n]o police department can shirk their responsibility to be transparent any longer. We will fight resistance to accountability wherever we see it and continue working to end the secrecy shrouding evidence of police misconduct across New York state,’ Trimble said.”
 
On May 23, 2021, Newsday reported “Counties Conceal Court Records In Police Cases. Advocates want disclosure of alleged abuses.” The article discusses how, “[t]he repeal last year of long-standing state legislation, known as 50-a, that had kept most police disciplinary files secret, has prompted lawyers to push for more public disclosure of discovery. Separately, it brought a flood of public records requests to police departments, many of which have been denied. Newsday is suing Nassau police over its refusal to release most police disciplinary files the paper requested in the repeal’s wake.”
 
As Legislative Session Winds Down, Focus is on Clean Slate
A May 20, 2021, article in City and State NY on pending legislation mentioned the final push for the Clean Slate bill and also links to the website for the Justice Roadmap.
 
As we have noted before, NYSDA supports the passage of the Clean Slate bill and is a member of the Clean Slate NY coalition. The bill (S1553A/A6399) was highlighted earlier this month in the Ithaca Journal, which discussed the impact Clean Slate would have on millions of New Yorkers. “Automatic sealing would occur one year after the person is sentenced for a misdemeanor and three years after a felony, advocates say. A person could have their record expunged — which is stronger than sealing and essentially deletes convictions from their record — at least five years after being sentenced for a misdemeanor and seven years after being convicted of a felony, according to the legislation.”
 
While there has been pushback by prosecutors and law enforcement who are advocating for “carve outs” to the bill, the article notes that the proposed law, in its original form, includes such exclusions, such as an individual “can’t have a pending criminal charge in the state, be on probation or parole for the eligible convictions, or be registered as a sex offender, the legislation states.” Furthermore, “[o]nce the record is sealed, it would be disseminated in specific instances such as to a prosecutor for the purpose of a pending criminal action or to government entities responsible for issuing gun licenses.” Finally, the article mentions that “[a]dvocates, many progressive lawmakers and even JP Morgan Chase say that this will help people with criminal records overcome a lifetime of barriers to stable employment, housing, and other necessary resources.”
 
JP Morgan Chase has supported Removing Barriers to Employment through Automatic Record Clearing and, as reported earlier this month by Spectrum News, called on the Governor and legislators to pass the bill. “‘As we continue to recover from the pandemic, businesses are adapting to economic conditions and resuming their search for skilled workers. By reducing barriers to employment for those with criminal records, we will be able to get more people back to work more quickly. JPMorgan Chase is committed to giving people across the country a second chance.’”
 
Legal Aid’s Case Closed Project Releases Flyer on Marijuana Expungement
The Legal Aid Society’s Case Closed Project has posted a helpful summary, “What You Need to Know About Marijuana Expungement.” The page links to one-page flyer with the same information in both English and Spanish.
 
Parents Call on Mayoral Candidates to Address Racism in the Child Welfare System
As reported in Rise magazine, with the NYC mayoral election just a few months away, and a focus on racial disparities in the forefront more than ever before, “[p]arents call on NYC’s next mayor and City Council to reverse our city’s over-investment in family policing and under-investment in communities.” “Candidates are being called upon to share their plans to address policing, incarceration and racial justice. Yet a parallel racist and harmful system is family policing by the city’s Administration for Children’s Services (ACS) and by the state hotline that drives over-surveillance of families.” Rise calls on “candidates for mayor and City Council to address family policing in their platforms and go on record committing to parents’ recommendations for a new approach in NYC:
 
  • Reorganize New York City’s structures of family support
  • Eliminate ACS gatekeeping of resources and policies in other systems that channel families into ACS involvement
  • Build networks of care within communities and institutions that affect family life
  • Invest in peer first responders to support families, instead of hotline calls
  • Invest in adapting community-led healing, restorative, and transformative justice approaches for family support
  • Hold ACS accountable for acknowledging its harmful past”
 
Show the Need for Expert Testimony on Teen Brain Development
The Court of Appeals held on May 4th that a trial court did not abuse its discretion by blocking defense efforts to introduce expert testimony on “the science of adolescent brain development and behavior, to assist the jury in determining whether” the prosecution had met its burden to disprove justification. The court in People v Anderson found that no error occurred “[u]nder the particular facts of this case ….” The memorandum decision offers few facts beyond those that open the opinion: the “[d]efendant was 14 years old when he fired a revolver in the direction of rival gang members on a public bus,” killing a bystander, and then chased the rivals and continued to fire at them on the street. No Frye hearing was held, and no analysis is offered.
 
A New York Law Journal article said that lawyers in Anderson had “argued that expert testimony about adolescent brain development was central” to the client’s defense and that a doctor’s testimony would “educate the jury ‘on the lack of brain development in adolescents….’“ It also noted that the Court of Appeals ruling was described as “deeply disappointing” by Alice Fontier, president of the New York State Association of Criminal Defense Lawyers, because “a child’s brain is not the same as an adult brain,” as shown by “well-accepted science,” and “an adult faced with Anderson’s situation may not have acted the way a child did.” Given the importance of the issue in question, defense lawyers with young clients should not abandon the type of evidence proffered in Anderson, but work to demonstrate its applicability to their case.
 
The potential of scientific knowledge about adolescent brain development for helping young clients is not news. For example, 2014 training materials provided at a NYSDA training on “Considerations in Arguing for Youthful Offender Treatment” included references to neuroscience papers dating back to the early 2000s. And of course brain science was a powerful part of the discussions and decisions around raising the age of criminal responsibility. See, e.g., Final Report of the Governor’s Commission on Youth, Public Safety and Justice, touted as part of the Governor’s “Opportunity Agenda” in 2015. If you have a case where adolescent brain development may be raised, you can contact us at the Backup Center for more information ([email protected], web contact form, or [518] 465-3524).
 
CAL’s Court of Appeals Update Available
The Center for Appellate Litigation (CAL) has made its May 2021 Court of Appeals Update available online. This list of significant criminal cases pending in New York’s highest court is updated every two months. NYSDA, which pointed to the January edition of this resource in an item in the Mar. 19, 2021, edition of News Picks regarding TrueAllele, greatly appreciates CAL’s generosity in sharing this and other resources.
 
New York’s Court of Appeals Must Reflect Our State’s Diversity
Senator Alessandra Biaggi authored the above named op-ed in the New York Law Journal, where she states, “[w]e have an opportunity — and a responsibility — to build a bench that reflects our state’s diversity, understands the lived experiences of working class and poor New Yorkers, and will champion human rights. If we do not, our jurisprudence, and our state, will suffer for it. The Court of Appeals has issued a number of incredibly troubling decisions recently that reflect a court out of touch with the realities of the citizens of our state.” Senator Biaggi references decisions in some specific cases, including Rivera v State of New York, in which “the Court ruled 4-3 that the State was not responsible for prison guards who senselessly beat a person incarcerated in a state prison because they were acting outside the scope of their employment.” Another case raised in the article was People v Goldman, where “the Court of Appeals recently held that the police can obtain DNA from a suspect without giving them the opportunity to challenge the search warrant, despite a bodily intrusion.” Further, “numerous cases have come before the Court of Appeals recently where the Court has rejected New York City’s express attempts to expand the purview of its Human Rights Law.”
 
Chief Judge and Chief Administrative Judge Share Progress on Equal Justice in the Courts Initiative
On May 17, 2021, Chief Judge DiFiore and Chief Administrative Judge Lawrence K. Marks, “provided an update on numerous steps being taken by the Unified Court System (UCS) in carrying out the recommendations of the Special Adviser on Equal Justice in the Courts, former U.S. Secretary of Homeland Security Jeh Johnson, as outlined in a comprehensive report released in October 2020.” As reported in the October 20, 2020, edition of News Picks, DiFiore appointed Johnson to lead an independent review of court policies, initiatives, and “court system’s response to issues of institutional racism ….” The October 2020 report contained 13 proposals intended to combat, among other things, discrimination and bias in the court system, and lack of diversity in the court’s workforce. Hon. Edwina G. Mendelson, Deputy Chief Administrative Judge for Justice Initiatives, continues to oversee the daily supervision of the Equal Justice in the Courts Initiative, focused on implementing the Special Adviser’s recommendations. Below are some of the actions announced on May 17th:
 
  • “Stepping up outreach efforts by the Chief Judge, Chief Administrative Judge and other court officials to more effectively communicate and reinforce the court system’s zero tolerance stance on bias, discrimination and harassment, including the use of social media by court system judges and staff.”
  • “Developing mandatory, in-depth training for all judges and nonjudicial staff on racial bias, implicit bias and other relevant topics, including enhanced training for Court Officers on cultural awareness, tenets of customer service, trauma-informed care principles and procedural justice, among other areas. Mandatory training will begin this summer.” 
  • “Mandating name tags for all uniformed court personnel.“
  • “Creating materials to better address the issue of juror bias, including updating the court system’s juror orientation video.”
  • “Continuing the robust implementation of the courts’ strategic plan for language access services. Going forward, uniformed Court Officers and other staff will receive regular training on how to best serve court users who have limited English proficiency and/or hearing impairments.”
 
Re-Certificated Judges May Be Assigned to NYC Family Court, Other Busy Courts
Chief Judge DiFiore announced in her May 17, 2021, message that she is “looking forward to the return to the bench of a number of highly experienced Supreme Court Justices who recently accepted our invitation to renew their applications for certification following the positive change in circumstances last month affecting our court system’s budget.” These are judges that were being denied certification to work past the age of 70 due to a lack of money in the court system's budget. DiFiore announced that some of these judges will be used to meet the increased demand in other courts, such as NYC Family Court. The long backlog in NYC Family Court has been a problem since the start of the pandemic, causing some parents to be denied access to their children as a result of delayed calendaring of petitions. As reported in the May 21st edition of the New York Law Journal, not everyone is happy about this plan. Queens Supreme Court Justice Carmen Velasquez, president of the Association of Justices of the Supreme Court of the State of New York, said “[t]here’s no reason for the ousted judges to not return to their original courts …. Potentially shuffling them to New York City family or housing court is a slight to the state Supreme Court judges, she said, and the move doesn’t respect the specific experience needed to effectively operate a family or housing court.” While it is typical for returning judges in this position to be assigned to where they previously sat, a court system spokesperson said that “this time around, caseloads will determine whether the state Supreme Court judges are put in New York City family or housing court ….”
 
ShotSpotter Redux
A court in Chicago has been asked to scrutinize the gunshot detection system ShotSpotter™ ”to determine if it is ‘sufficiently trustworthy’ to be allowed as evidence in a criminal case,” according to an Associated Press article on May 3rd. The news account says community groups and Northwestern University Law School’s MacArthur Justice Center filed papers supporting defense attorneys’ request in a murder case. They cite a study that reportedly found that in a nearly two-year period, nearly 90% of alerts from ShotSpotter did not ”result in officers reporting evidence of shots fired or of any gun crime.”
 
Back in 2013, News Picks included an item noting a September 11 blog post with the title, ”Shotspotter - Now you see it, now you don’t.” That post by Jill Paperno, described as providing “specific pointers for practitioners whose cases may involve ShotSpotter evidence” and offering “a healthy dose of skepticism about this sort of technology,” can still provide defenders with helpful information if ShotSpotter evidence turns up in their jurisdiction. (NYSDA has no list of jurisdictions that currently use ShotSpotter—while Syracuse reportedly recently ceased use because it was too expensive, expansion of its use by the NYC police was criticized in March of this year. The Seventh Circuit observed last year that “[o]ne hundred police departments use a surveillance network of GPS-enabled acoustic sensors called ShotSpotter to identify gunfire, quickly triangulate its location, and then direct officers to it.” United States v Rickmon, 952 F3d 876 [2020]). A 2015 news report indicated that sensors once deployed in Troy, NY, were being used elsewhere as part of a ShotSpotter/General Electric project. The article noted that ShotSpotter “systems are used in 90 cities, although there have been concerns about the effectiveness of the systems.”
 
In February of this year, a California appellate court said that “[i]n the published part of this opinion, we conclude the trial court erred in admitting the Shotspotter evidence without first conducting an evidentiary hearing to assess its scientific reliability ….” People v Hardy, 275 Cal Rptr 3d 566, 568–69 (Ct App 2021).
 
ShotSpotter’s accuracy has been a major focus of concern, but another issue may exist. A law review article in 2019 highlighted, as part of an analysis of technological invasions of privacy in the name of safety, that “ShotSpotter recordings contain audio of several seconds before and after the gunfire” and “human voices can indeed be included in ShotSpotter recordings.” Two murder cases that resulted in convictions are discussed.
 
And on a completely different note, at least as of last year, the State’s retirement fund had invested in ShotSpotter, holding 28,444 shares of company stock.



Association News

NYSDA’s Annual Conference Will Be Virtual Again, Save These Dates: July 26 - 30
To protect the public defense community we serve, our staff, and others from ongoing risks related to COVID-19, NYSDA has decided to hold our 54th Annual Meeting and Conference virtually. We look forward to resuming our tradition in Saratoga Springs in 2022. This year’s program will be similar in format as last year, and will be held Monday, July 26 through Friday, July 30. Program details and registration information coming soon. We look forward to your participation in our Annual Meeting and Conference!
 
Upcoming Training
 
Thursday, June 3, 2021, 1:00 – 3:00 pm, 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. There is no cost to attend this program, but pre-registration is required. If interested, please register here.
 
Friday, June 11, 2021, 12:00 – 1:15 pm, 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.
 
Thursday, June 24, 2021, 3:00 − 5:00 pm: Attacking Historical Cell Site Analysis - Demystifying the “Science” of Cell Phone Tracking, presented by Phillip Hamilton, Attorney at Law; Christian Lassiter, Assistant Federal Public Defender for the District of Maryland; and Sidney Thaxter, Attorney and Head of Digital Forensics Unit, Criminal Defense Practice, The Bronx Defenders. There will be no cost for this program. If interested, please register here.
 
We hope you are able to take advantage of these informative sessions. For questions about our training programs, email [email protected].