Revised Pandemic Procedures Impact New York Jury and Bench Trials
Chief Judge DiFiore’s November 16th message, and Chief Administrative Judge Mark’s November 13th Revised Pandemic Procedures in the Trial Courts discuss the Unified Court System’s position on pausing in light of the increasing number COVID-19 cases across the state. “With Thanksgiving and the year-end holidays fast approaching, it would not be wise or prudent for us to continue scheduling jury trials and summoning large numbers of jurors, lawyers, litigants and witnesses into our courthouses at this time,” DiFiore said in a video statement Monday and reported in the New York Law Journal.

The changes in court appearances were also reported in a Law360.com article. The changes include:
  • Prospective jurors for new criminal or civil trials will not be summoned, while trials that are already underway are expected to proceed for now until they conclude.
  • Prospective grand jurors will also be instructed not to physically appear for grand jury service, while pending grand juries are anticipated to continue until completion.
  • Future bench trials and hearings will be conducted virtually unless a deputy chief administrative judge rules otherwise, with pending bench trials expected to continue until they conclude.
  • In-person court conferences that adhere to social distancing guidelines will also be permitted.
  • These practices may be further amended as the public health situation evolves.

Grand jury terms vary around the state, but most are currently scheduled to end between the last week in November and the end of December 2020.

Initial Report on the Goals and Recommendations for New York State’s Online Court System Released
The Office of Court Administration issued a press release on November 16th, entitled “Newly-Charged Commission Proposes Online Enhancements to Better Equip the Court System to Meet New Yorkers’ Justice Needs Amid COVID Pandemic and Beyond.” In it, they discuss recommendations made in the Nov. 9, 2020, report prepared by the Online Courts Working Group of the Commission to Reimagine the Future of New York’s Courts. As noted in the press release, key recommendations include: “[e]valuating and analyzing the experience of virtual proceedings during the COVID-19 pandemic−weighing the many practical, constitutional, budgetary, and technical factors−in determining their future role in the New York State courts and ensuring the rights and needs of all parties are addressed.”

The report was also covered in the New York Law Journal on Nov. 16, 2020, and addresses some of the concerns with virtual courts. “While virtual proceedings improve access for some litigants and witnesses and can allow for speedier resolutions, the working group highlighted privacy and security concerns and the challenges faced by litigants needing translation services or lacking technological access. Attorneys have also raised concerns about communicating with their clients during virtual hearings, when the traditional options of whispering in a client’s ear or passing a note are impossible, according to the report. ‘This concern is particularly felt in criminal proceedings where the defendant may be in custody and lack access to a private area to speak with his or her attorney,’ the working group wrote. ‘In those circumstances, even if the technological medium for communications is secure, it does not guarantee privacy or confidentiality for users.’”

As defenders continue to navigate representation of clients in virtual courts, we encourage you to contact us if you are encountering difficulty with access to clients and ensuring procedural due process. NYSDA has been setting up calls with defenders across the state in an effort to share information and strategies on moving forward during these difficult times. Please reach out to the Backup Center if you need assistance: web contact form, info@nysda.org, or (518) 465-3524.

Viewpoint: License Suspension Reform Good Move for State
In an opinion published in the Times Union on Nov. 5, 2020, David Lamendola, Director for State Government Affairs for New York and Connecticut at Verizon, urged Governor Cuomo to sign the Driver’s License Suspension Reform Act, S5348-B/A7463-B. The opinion says, “New York is doing more harm than good to the community and to the economy with traffic debt suspensions. In parts of New York without reliable public transportation, driving is a necessity. Many of our employees need driver’s licenses to work and commute to the office. Preventing New Yorkers from working due to a license suspension punishes people solely because they can’t afford to pay fines or appear at a traffic hearing. Thankfully, New York is on the verge of a breakthrough. This summer, the Legislature passed the Driver’s License Suspension Reform Act, which could make New York the 11th state to end the unproductive practice of debt-based driver’s license suspensions.”

November 16-20th: Digital Week of Advocacy Urging Cuomo to Sign the Bills
The Driven By Justice Coalition has organized a digital week of advocacy to urge the Governor to sign bills passed and has created a Social Media Toolkit for supporters to use. For those seeking additional information, email Ranit Patel: rpatel@bronxdefenders.org.

  • The Driver’s License Suspension Reform Act (DLSRA), S5348-B/A7463-B, would end New York’s cruel and counterproductive practice of suspending a person’s driver’s license when they don’t pay a traffic fine or answer a traffic ticket. More information about the DLSRA is available in the October 20th issue of News Picks from NYSDA Staff.
  • The Contact Tracing Confidentiality Act, S8450-C/A10500-C, would prohibit police or immigration enforcement from having access to contact tracing data, protecting the confidentiality of contact tracing data and limiting its use to public health purposes.
  • The Proximity Bill, S724-A/A6710-A, would require the Department of Corrections and Community Supervision to move incarcerated parents to the NY State prison closest to their children after security level, health, and programming needs are met.
  • The Protect Our Courts Act, S425-A/A2176-A, would ensure equal access for immigrants to courts by preventing ICE from arresting people attending court without a warrant.

Investigation Commences into Illegal Drug Testing of Expectant Mothers
According to numerous reports made by advocates, Black and brown expectant mothers and their newborns are being illegally targeted for drug testing by some New York City hospitals based on the color of their skin. As reported in The Imprint Youth and Family News, these reports of illegal treatment have resulted in the NYC Commission on Human Rights launching a new investigation into three major New York City hospital systems. A press release issued on Monday says, “The investigations examine the hospitals’ policies and practices regarding drug testing of pregnant people and newborns to assess whether those policies and practices demonstrate discriminatory racial bias against Black and Latinx families. The Commission-initiated investigation seeks to root out and end any such discriminatory practices.” Additionally, the investigation seeks to address advocate concerns that hospitals are improperly making reports to the State Central Register (SCR) based on a “single unconfirmed positive screen,” resulting in a mandatory investigation by the Administration for Children’s Services. It is unknown at this time when the investigation is expected to conclude.

As reported by the Gothamist, New York City’s public hospitals implemented a new policy of not testing expectant mothers without their express written consent, effective Sept. 15, 2020. “Under the City Health and Hospitals Corporation’s previous policy, medical staff did not need to provide pregnant patients with any written information on a toxicology test or obtain their signatures to perform one, which led to women reporting that they were tested unknowingly or without their approval.”

Police Misconduct Records: The Pushback on Disclosure Continues
An amicus brief was filed last week in the Second Circuit by the Lawyers’ Committee for Civil Rights Under Law, the NAACP Legal Defense and Educational Fund, Inc., LatinoJustice PRLDEF, and Law for Black Lives, in the ongoing litigation over disclosure of New York City police officers’ misconduct records. A press release was issued on Nov. 12, 2020, that included the following: “‘Police misconduct endures in large part because officers are not held accountable for their actions,’ said John Fowler, counsel with the Criminal Justice Project at the Lawyers’ Committee for Civil Rights Under Law. ‘The repeal of 50-a was a critical step in the right direction. We cannot let the resistance of the police unions in New York City continue to undermine the will of the people. Police accountability and transparency are necessary after nearly 50 years of the public being left in the dark.” 

Upcoming Freedom of Information Law Training
The New York Committee on Open Government will be presenting a virtual Freedom of Information Law (FOIL) training program on Thursday, Dec. 3, 2020 from 10:00 am to 11:30 am. “The program will consist of a one-hour overview of the statute, followed by 30 minutes of a question and answer period.” The program information is available here.

NYSDA Training -- Focus on FOIL: Freedom of Information Law. Save the Date! NYSDA will be presenting this training on Wednesday, Dec. 9th from 1:00 to 3:00 pm. The program has been designed to assist defenders who have been facing resistance obtaining police disciplinary records through automatic disclosure under CPL article 245 and to give tips and strategies on submitting FOIL requests, handling subsequent denials, and CPLR article 78 litigation. More information and registration details will be available shortly. For questions, please contact training@nysda.org.

Western New York Regional Immigration Assistance Center Resources
The Western New York Regional Immigration Assistance Center (WNY RIAC), a partnership between the Ontario County Public Defender’s Office and the Legal Aid Bureau of Buffalo Inc. (LABB), has begun publishing a monthly newsletter addressing important topics related to the representation of noncitizens involved in the criminal justice system and immigration consequences of convictions. They have put out two issues to date, Volume I, October 2020 and Volume 2, November 2020. While the WNY RIAC provides assistance to public defenders and assigned counsel in the 7th and 8th Judicial Districts, the topics are of interest to all regions in the state.

As noted on its website, the WNY RIAC provides “individual case assistance, training, consultations, and support to appointed criminal defense counsel and Family Court attorneys in their representation of non-citizen clients. The RIAC can also assist with the analysis and filing of a NYCPL 440 motion for ineffective assistance of counsel if a client was not properly informed of the immigration consequences of a plea. These services are free to all counsel appointed to represent indigent non-citizen clients in Criminal and Family Court proceedings.” Sophie Feal, who practiced immigration law for almost 30 years before joining LABB, is the Supervising Immigration Attorney. All questions regarding immigration consequences should be directed to Sophie at sfeal@legalaidbuffalo.org or at (716) 853-9555 x 269 during the “pause.”

For information about all the Regional Immigration Assistance Centers around the state, visit NYSDA’s website at https://www.nysda.org/page/CrimImmResources.

Keeping Up with COVID-19 in DOCCS is Difficult
Prisons can obviously be affected by the increasing numbers of novel coronavirus infections across the state. Since the Nov. 4, 2020, edition of News Picks reported on outbreaks at Greene and Elmira Correctional Facilities, visitation and transfers at those facilities have remained suspended. Visitation at Southport was also suspended, as it was at Willard, but visitation at Willard is expected to resume on November 21st. Substantial numbers of tests have been administered at other facilities—Auburn, Sing Sing, and Woodbourne—and results were pending as of November 16th. Press coverage from November 9th about the two prisons in Washington County can be seen here. NYSDA has heard anecdotally that the Downstate tests encompassed individuals in both reception and general population and that transfers in and out were suspended for at least three weeks, but we have not verified that. The Department of Corrections and Community Supervision (DOCCS) provides information on its COVID-19 Report webpage, but developments can outpace updating there.

Defenders with clients in or headed to DOCCS custody are reminded that COVID-19 can affect programming, as discussed in the Aug. 31, 2020, edition of News Picks. For example, for those with pending felony cases, if a year of county jail time is a negotiable outcome (see Penal Law 70.00[4]), that may be something to consider over a plea that involves the promise of Shock right now. Clients need to know that Shock may well NOT be a quick 6-month program, given the state of transfers and programs and the rates of infection in DOCCS. NYSDA thanks Prisoners’ Legal Services of New York for providing us information.

DOCCS, like the rest of the criminal legal system, has been dealing with COVID-19 for most of this year. Yet, no change reflecting the ongoing pandemic and its effect on the safety of those incarcerated or employed in prisons has been made to even the latest periodic “Fact Sheet” released by the Department. And the Daily News reported on November 10th that, while DOCCS “has released more than 3,116 people since March 16 over coronavirus concerns, … only five people have been let out since March 16 after the New York State Parole Board granted them medical parole ….”

Impact of COVID-19 in Local Jails Also Continues
This month, the Center for Court Innovation posted a research brief, “COVID-19 and the New York City Jail Population,” which “documents overall jail trends and more specific changes in the composition of the jail population from mid-March to the beginning of November 2020.” The Summary of the report notes that “the number of people detained in New York City jails dropped precipitously from mid-March through the end of April. However, as the impact of the initial measures has faded, the subsequent re-increase in the jail population has already reversed more than half of those reductions.” While COVID-19 features prominently in the report as a reason to seek greater reductions, the report emphasizes that “[t]he long-term harms of even a short stay in jail for defendants, their families, and communities—especially communities of color—have been widely documented.”

A November 9th media release by five New York City institutional public defense providers focuses on the COVID-19 dangers to incarcerated people and jail staff as the number people locked up grows during the current, growing wave of the pandemic. The information contained in the release was obtained though Freedom of Information Law (FOIL) requests. As noted above, NYSDA will be presenting FOIL training on December 9th.

COVID-19 in jails is a threat outside New York City—and outside New York State—as well. Among steps announced to try and limit the virus’ spread inside is the Commission of Corrections Chairman’s Memorandum of Oct. 28, 2020. This “Health Advisory: Limitations on Correctional Facility Visitation via the Cluster Action Initiative” instructs those in charge of jails and the health of people in jails to review information and adjust local policies as needed to conform to Department of Health guidance relating to Executive Order 202.68. The monthly population numbers for jails in New York can be found here.

An article stressing the danger that COVID-19 in jails poses not just inside but across communities and beyond, using a (sometimes criticized) June study from Illinois as the example, can be found here. A report about COVID-19 in Texas jails and prisons, which includes some comparisons to other states, can be found here.



Association News

There is Still Time to Register!
Friday, Nov. 20, from 9:00 am to 4:45 pm: Criminal and Family Defense Update 2020
The program will address a number of criminal and family defense topics: “Defending Your Client Against TPRs”; “Fundamentals of Parole Revocation and Impacts of COVID on Dispositions”; “Bail Reform: Where Are We Now?”; Article 245 Discovery: Emerging Trends”; and “Avoiding the Pileup at the Intersection of Criminal and Family Courts.” The program is $55/person or $45/person for groups of 5+. 6.0 credit hours in Professional Practice plus 1.0 credit hour in Ethics. Tuition assistance is available; please email training@nysda.org for more information. To register, click here.

Veterans Defense Program Hosting 3rd Annual Veterans Treatment Court Convening on December 4
NYSDA’s Veterans Defense Program is hosting the 3rd Annual Convening of Defense Attorneys Assigned to Veteran Treatment Courts (VTCs) in the State of New York, on Friday, Dec. 4, 2020, from 10:00 am to 12:00 pm, via Zoom. This virtual Veterans Treatment Court Roundtable Convening will give defense counsel from public defense providers who are assigned to VTCs the opportunity to discuss their experiences with colleagues from across the state. This convening will be an informal roundtable discussion that will allow you the opportunity to share what you feel is working well in your court and participate in problem-solving with regard to ongoing concerns. More information and registration details are available at https://cdn.ymaws.com/www.nysda.org/resource/resmgr/pdfs--vets/VTC_Convening.pdf. We hope you are able to join us for this important event.

Racial Justice and Equity Webpage added to www.nysda.org
Working to carry out the pledge made in “Black Lives Matter to the New York State Defenders Association” “to expose and end the overt racism and implicit biases that traumatize and re-traumatize entire communities,” NYSDA has added a new page to its website. The Racial Justice and Equity webpage lists a number of resources intended to help individuals and entities in the ongoing struggle to overcome structural, systemic racism and implicit bias. NYSDA encourages visitors to the page to make suggestions for updates and additions; email info@nysda.org.

NYSDA Welcomes the Special Adviser’s Report
NYSDA recently issued a “Statement Welcoming the Report of the Special Adviser on Equal Justice.” The statement emphasizes NYSDA’s agreement with the Special Adviser that “strong and pronounced rededication to equal justice under law by the” court system is required, and that “both strong commitments to reform at the front end and a sustained effort to follow through on those commitments” are needed if the report and its recommendations are to be viewed as credible. NYSDA’s statement expresses the hope “that in undertaking implementation of the recommendations, the Chief Judge and court system personnel will seek public defense participation in every step of planning, execution, and evaluation,” and offers our assistance in this regard. The report was described in the October 20th edition of News Picks.
 
Bryant Testifies at Committee Hearing on Judiciary Budget Cuts
NYSDA Executive Director Susan C. Bryant testified at the Assembly Judiciary Committee’s hearing on Budget and Staffing Reductions in the Judiciary Branch on Nov. 12, 2020. As noted in a Law360.com article, Bryant noted the need to respect due process in dealing with growing backlogs; speedy trial issues and longer separation of parents from children are caused by delays, but faster proceedings can allow implicit bias to infect life-altering decisions. Bryant’s oral testimony is available here (beginning at 1:48:01); written testimony will be available soon. 
 
Save the Date
  • Dec. 3, 2020, from 10:30 am to 12:00 pm: Border Consequences of VTL 1192 Convictions, with Jonathan D. Cohn.
 
  • Dec. 17, 2020: Family Court Practical Skills. This half-day program will include cross examination techniques for questioning experts and DSS workers, and strategies for representing parents accused of substance abuse neglects. Presenters: Emma Alpert, Jessica Horan Block, Miriam Mack, Nila Natarajan, Hannah Weinstein, and Melissa Trent.