Bills Signed Affecting Prisons, Youthful Offender Designation after Sentencing
Governor Hochul has signed bills that prohibit double-bunking in state prison and establish a Commission on Prison Education, as well as a bill allowing eligible youth to seek Youthful Offender status after five years. Additionally, a bill to streamline assignment of appellate counsel has been delivered to the Governor.
 
The Correction Law has been amended by adding a new section 607 that prohibits “double-bunked housing,” i.e. “the practice of inmate housing where bunk beds are used in a dormitory setting, with inmates residing in an open space and sleeping on bunk beds.” The purpose of the new law is to reduce the number of people held in given medium secure dormitories, because “inmate disturbances” are said to be more difficult to contain there. People who are moved due to the new law are not supposed to be sent to more restrictive units or facilities “unless otherwise appropriate.” L 2021, ch 570 (Effective Feb. 1, 2022). The union representing corrections officers was reported to support the bill when it passed. As reported by HudsonValley360.com, “[t]op corrections officers are hopeful a new law that prohibits double-bunked housing in state prisons will help slow pending prison closures and reduce record-high numbers of violent attacks on staff.” Several days after signing of this bill, the State announced that six correctional facilities will be closed on Mar. 10, 2022.
 
A new section 49 has also been added to the Correction Law, establishing a nine-member Commission on Prison Education “to study and develop a plan for improving education in state prisons.” L 2021, ch 557 (Effective Nov. 3, 2021).
 
To provide eligible youth with an added opportunity to be designated youthful offenders, a new bill amended CPL 720.20 by adding a new subdivision 5. Review may be sought five years after sentence was imposed or the individual’s release from incarceration, whichever is later. Applications must be served on the district attorney, and factors to be considered in reviewing the application are set forth in the statute. L 2021, ch 552 (Effective Nov. 2, 2021). As reported by Spectrum News: “People who were convicted of a crime when they were under the age of 19, but denied youthful offender status at the time, will be able to re-apply for it under a measure approved Tuesday by Gov. Kathy Hochul.” Governor Hochul said upon signing the legislation into law, “[f]ar too many New Yorkers who made poor choices at a young age are forced to deal with the lifelong consequences of criminal convictions that deny them a second chance at a productive, fulfilling life.”
 
Assignment of Appellate Counsel Bill Sent to Governor
A bill that would streamline assignment of appellate counsel was sent to the Governor on November 3rd. (S1279/A4689.) NYSDA and many others support the bill.
 
Preserving Family Bonds Bill Remains in Limbo
The Preserving Family Bonds Act (S6357/A6700), which the legislature passed earlier this year, has still not been sent to Governor Hochul. If signed, the law would give family court judges the discretion to order post-adoption contact between children and their biological parents and siblings, if it is determined to be in the best interests of the children. This transformational piece of legislation has the potential to make real change in the lives of families who have been made legal strangers, and can never have contact with each other, as a result of a termination of parental rights proceeding. NYSDA and many other organizations support the bill and urge the Governor to sign it without delay.
 
Another bill related to family law was signed into law on Oct. 25, 2021. The “pet custody bill” amends Domestic Relations Law 236 to require the court to consider the best interest of a companion animal when awarding possession in a divorce or separation proceeding.
 
Faith Based Leaders Encourage Gov. Hochul to Keep Going on Reforms
In an Opinion piece published online on Lohud.com as a Special to the USA TODAY Network, entitled, “‘Less is More’ legislation honors America’s tradition of repentance. Let’s do more,” the authors wrote of the tradition that guides them as Reform Jews, and pose the question: “So why are some politicians trying to persuade us that ‘public safety’ and ‘fairness to victims’ require us to jail people for activity that isn’t criminal — or even threatening?”
 
Report on Discovery Implementation Released
Noting that “[s]tate law requires the chief administrator of the courts, in conjunction with the Division of Criminal Justice Services (DCJS), to report on how the new Discovery statute was implemented,” DCJS has posted online Implementation of 2020 Discovery Law Changes. The report is based on surveys of “district attorneys’ offices, police departments, sheriffs’ offices, and forensic laboratories because the law required them to implement significant operational changes.” Unfortunately, defense attorneys were not surveyed at the same time. However, a survey will be issued shortly to gather information from defenders about their experiences with the implementation of the discovery reform law and an addendum to the report is expected to be published in early 2022. The Chief Administrator of the Courts is expected to release a report around the same time as the defense survey results are published.
 
The text and appendices to the DCJS report show that the surveys focused on training, staffing, and scheduling changes, changes in procedure (including detailed information on how discoverable materials are obtained, managed, and disclosed), coordination with stakeholders, and the impact of the COVID-19 pandemic on implementation. The report notes that “[t]he overarching theme of all survey responses was lack of adequate staffing and financial resources to gather, review, compile and share an increased volume of materials during a significantly compressed timeframe ….”
 
The State made $38.25 million available to counties for implementation of discovery reform and changes to the bail law. According to the report, counties “were required to prioritize requests for its district attorneys’ offices, local police departments, and sheriffs’ offices, but funding also could support pretrial services and increased case supervision resulting from bail reform, nonprofit organizations, and forensic laboratories.” However, the report did not include information about how funding was allocated in each county.
 
Responding district attorneys expressed concern about, among other things, the burden placed on their staff by the changes in discovery and a perceived lack of financial support for implementation of the law; some reported “an increase in litigation related to discovery compliance.” Only 29% of law enforcement agencies responded to the survey. Most noted making staff changes, though 44 (of 142) did not change staffing or scheduling. Significant increases in workloads and overtime were reported and concerns were expressed that policing duties had to be scaled back. “A handful of agencies reported that they had little to no problems with compliance,” the report says. Ninety-three percent (50) of offices changed how they disclose discoverable materials to defense counsel, with almost all using New York Prosecutors Training Institute’s Digital Evidence Management System and other similar systems. “One respondent from an office that does not use DEMS reported that it coordinated with the defense bar to establish a satisfactory workflow for disclosing discoverable materials.”
 
City of Albany Expands Powers and Resources of Community Police Review
The Times Union reported that “voters overwhelmingly approved a ballot measure that would give the city’s Community Police Review Board expanded powers and financial resources, including the power to conduct their own investigations into allegations of police misconduct.” The article further explains that the "measure was one activists had advocated for since the board’s inception two decades ago, arguing that the board was largely limited in what it could do when residents made allegations of misconduct against officers.”
 
Body Camera Footage Revealed Post Plea, Court Vacates Conviction
As reported in SILive, “a police body camera showed a cop planting pot in an SUV during a 2018 traffic stop in Stapleton prompting a Staten Island judge to vacate a defendant’s guilty plea.” The article discusses the court’s conclusion that the footage, “in conjunction with the arresting officers’ disciplinary records, indicate Jason Serrano ‘may have been searched and seized in violation of his constitutional rights.’” As this case was brought prior to the enactment of CPL article 245, the person charged had “not been provided with the officers’ body-worn cameras and disciplinary records prior to pleading guilty in June 2018 to resisting arrest to resolve charges stemming from an incident three months earlier.”
 
Gun Issues Drawing Attention
Public defenders, New York gun laws, and the Second Amendment have, in various combinations, drawn recent media attention. Most focused on the case now pending in the U.S. Supreme Court.
 
Defenders Weigh in on U.S. Supreme Court Case
As part of a SCOTUSblog symposium prior to argument in the case, five New York City defenders authored an article entitled “We are public defenders. New York’s gun laws eviscerate our clients’ Second Amendment rights.” They argue that the City’s licensing regulation “is a pretext whose true purpose is to make firearm possession unlawful,” that Black and Latinx people are targeted, and that public defense clients suffer a litany of harms for trying to exercise their rights under the Second Amendment to carry guns in self-defense. Reason Magazine noted that while many amicus briefs filed in New York State Rifle & Pistol Association v Bruen will likely have little effect, the one filed by a coalition of New York City public defenders might resonate with Justice Sotomayor. According to the article, the brief makes clear that a “decision against New York’s gun control scheme would be a victory not only for the Second Amendment but for criminal justice reform too.” See also this interview in Inquest.
 
An opinion in the Washington Post noted that briefing in the Supreme Court case “has made for strange alliances.” Along with the public defenders’ observations about the regulations’ effect on low-income people of color, others—including 21 Republican attorneys general and 176 Republican members of the House of Representative—have pointed to racial impact and a history of racism in calling for the regulations to be struck down. The op-ed counters that “the history of gun rights is as tarnished by racism as the history of gun regulations” and that focusing “on the purported disparate impacts of gun regulations on persons of color overlooks the fact that racial minorities disproportionately suffer the negative effects of gun rights.”
 
Other coverage of the case pending in the High Court included that on Law.Com (Saul Cornell’s writing before oral arguments and Marcia Coyle’s piece after, as well as an article entitled “‘NYSRPA v. Bruen’: Studies Show Direct Link Between Right-to-Carry and Violent Crime Increase”) and by the Albany Times Union (Robert Gavin’s pre-argument and post-argument reports).
 
Youth With Guns Draw Editorial Fire
In a different gun arena, the New York Post reported in early October that some New York City lawmakers want the State to “give judges the power to jail youth gun-law offenders based on their criminal history — and to ban gun offenses involving minors from being handled in Family Court, where the kids are often released quickly.” Later in the month, the Schenectady Daily Gazette editorialized that lawmakers should amend the Raise the Age laws passed in 2017 so that they no longer “compel the release into their family’s custody of a violent teenager, especially one in possession of weapons intending to use them.” Earlier, in August, the Rockland County Times reported on introduction of a bill by local state legislators that would add several more gun crimes to the list of qualifying offenses for which bail can be set.
 
Outlawing “Ghost Guns”
The Schenectady editorial above also called on the Governor to sign a bill outlawing “ghost guns.” She signed the bill on Oct. 28, 2021. L 2021, ch 520. Passing a federal ghost gun ban is among national firearm issues made a 2022 priority by the NYS Bar Association.
 
Family Court Cannot Order CPS to Initiate Neglect/Abuse Proceedings
The Third Department reversed the decision of a Clinton County Family Court Judge who ordered the Department of Social Services (DSS) to file a neglect petition against a mother and father following the results of a court-ordered home study, conducted pursuant to Family Court Act 1034. In Matter of Donald QQ. v Stephanie RR., 2021 NY Slip Op 05760 (10/21/2021), the Appellate Division held that the Family Court Act (FCA) does not explicitly authorize the court to order DSS to file neglect and abuse petitions, finding that “‘primary responsibility for initiating such proceedings has been assigned by the Legislature to child protective agencies which may file a petition whenever in their view court proceedings are warranted’ ….” FCA 1032 only authorizes the court to direct a “person” to file such a petition.
 
Solitary Confinement Ban Lifted in NYC
Incoming New York City mayor Eric Adams said he supports Mayor De Blasio’s Emergency Order lifting the ban on solitary confinement at Rikers Island. That Emergency Order, issued on November 1st, paused his administration’s “risk management accountability system” that promised to replace solitary. The EO was roundly criticized by both the Bureau of Corrections and defenders.
 
As a reminder, the Humane Alternative to Long-Term Solitary Confinement Act (HALT), which limits the use of segregated conferment to a maximum of 15 days, goes into effect March 31, 2022. Information on HALT appeared in the April 9th edition of News Picks.
 
Election Results May Effect Criminal Law Clients
Last week’s election included races for district attorney and sheriff. Local practice of criminal defense may be impacted by election results, with statewide issues like pushback on bail reform and local issues around policing having shaped some races. The impact on clients and their individual cases remains to be seen. A few election results of note:
 
  • Republican John Garcia looks to have won the race for Erie County Sheriff, though absentee ballots need to be tallied first. More: Buffalo News, WKBW.
  • Republican Anne Donnelly will be the next Nassau County District Attorney, after running a race almost exclusively centered around bail reform. More: Gothamist.
  • Democrat Alvin Bragg will be the next Manhattan District Attorney. His transition team will be co-chaired by a former public defender, and include directly impacted individuals. More: New York Times.


Association News

The final session is coming up in NYSDA’s series on The Past, Present, and Future of Forensic DNA Typing: What you need to know to defend your cases, with Jenny Cheung, Staff Attorney at The Legal Aid Society’s DNA Unit & Homicide Defense Task Force; Elizabeth Daniel Vasquez, Director of the Science & Surveillance Project at Brooklyn Defender Services; Jessica Goldthwaite, Staff Attorney at The Legal Aid Society’s DNA Unit; and Kate Philpott, Forensic Consultant. The third and final part is:
 
  • Friday, November 19, 2021, 2:00 – 4:00 pm: The Future: DNA Interpretations Don’t Matter (Reviewing the basics of transfer and persistence, and preparing defenses for cases involving seemingly inculpatory DNA results.) Click here to register.
 
The cost is $25 per person; $20 per person for offices sending five or more attorneys.
 
Tuesday, November 16, 2021, 1:00 – 4:30 pm: The Fundamentals of Veteran Representation- Part 2, with NYSDA Veterans Defense Program Director Gary Horton; Deputy Director Roy Diehl; and Staff Attorney Blair Hill. There is no cost for this program, but pre-registration is required. For details and program registration, click here.
 
Tuesday, November 30, 2021, 1:00 – 4:15 pm: NYSDA will be presenting a program on CPL Article 245 Discovery Review and Update on Emerging Practice Issues, with presenters from The Bronx Defenders: Aimee Carlise, Senior Attorney, Legal Department, Criminal Defense Practice; Ilona Coleman, Legal Director, Criminal Defense Practice; Ruth Hamilton, Senior Attorney, Legal Department, Criminal Defense Practice; and Defne Ozgediz, Senior Attorney, Criminal Defense Practice. Part 1 of the training will cover the prosecution’s discovery obligations, subpoenas, and prosecutors’ certificates of compliance; Part 2 will cover calculating 30.30 time, omnibus motion practice, protective orders, and defense discovery obligations. There is no cost for this program, but pre-registration will be required. For details and program registration, click here.
 
Friday, December 3, 2021, 2:00 – 3:30 pm: Post-COVID Practice: A Trauma-Informed Approach for Family Court Defenders, with the Ontario County Public Defender’s Office. Presenters will be Kate Falconer Woods, Attorney at Law; Elizabeth Justesen, Attorney and Chief Community Outreach Officer, Legal Aid Society of Suffolk County; Jasmine Brock, Staff Attorney, Family Defense Practice, Brooklyn Defender Services; and Adam Schmelkin, Supervising Attorney, Family Defense Practice, Brooklyn Defender Services. There is no cost for this program, but pre-registration will be required. Details and program registration will be available soon.
 
Thursday, December 9, 2021: Litigating in Color. NYSDA is partnering with the Black Public Defender Association (BPDA), a section of the National Legal Aid & Defender Association (NLADA), to present this all-day virtual training/CLE program on racial justice in family court. This intensive training program is comprised of materials and workshops (both small and large group) designed to enhance the capacity of family defenders to advocate for their clients through a racial justice lens. The topics to be addressed are the examination of racial bias in family court, challenging racial bias in family court, and anti-racism litigation skills. This free program is presented with support from The New York State Bar Foundation. Full program details and registration information will be released soon. For specific questions related to this training, please reach out to our Family Court Staff Attorney, Kim Bode, at kbode@nysda.org.
 
Thursday, December 16, 2021, 3:00 - 5:00 pm: Whose Witness Is It Anyway? Ethical Issues in Communicating with Witnesses, with Jill Paperno, First Assistant Public Defender, Monroe County Public Defender’s Office. The program will provide 2.0 CLE hours in Ethics and Professionalism. There is no cost for this program, but pre-registration is required. For details and program registration, click here.