CPL 30.30 Manual Spring 2022 Edition  

Drew DuBrin’s Spring 2022 Edition of the CPL 30.30 Manual is available here. NYSDA, as always, is appreciative of Drew sharing this very helpful resource with the wider defender community. If you have any questions, please contact the Backup Center at info@nysda.org or (518) 465-3524 or submit a contact form.

Another Preliminary Injunction of Concealed Carry Laws Issued, Then Lifted  

On November 7th, Judge Glenn Suddaby of the U.S. District Court NDNY found key provisions of the state’s new firearms legislation unconstitutional, specifically the requirement that applicants provide the names of cohabitants, provide social media accounts, and display good moral character. “The subjective and vague standard of ‘good moral character’ could allow licensing officers to deny an application if they were to see reflected in a compulsively [sic] disclosed social-media handle any hobby, activity, political ideology, sexual preference, or social behavior that they personally deem to show bad ‘temperament’ or ‘judgment,’” Suddaby wrote. The legislation’s sensitive places provisions are also found to be without historical analogues, similarly making them unconstitutional. Suddaby issued a similar injunction in October, which the state is currently appealing. As reported by The Gothamist, a three-judge Second Circuit panel reinstated the enjoined sections while the challenge continues.

Third Dept. Affirms Dismissal of Custody Modification Petition  

In a Family Court Act article 6 custody proceeding, the Third Department reminds us of the standard for a custody modification, and the importance of motion practice when you think the opposing side has not established a prima facia case. In Matter of Felix A. v Jennifer B., 2022 NY Slip Op 05903 (10/20/2022), the court upheld the dismissal of the father’s petition for modification of an existing order, finding that he had failed to establish the requisite change of circumstances. The court stated that, “‘[g]enerally, in order to survive a motion to dismiss, the petitioner is required to establish a change in circumstances warranting an inquiry into whether the best interests of the child would be served by modifying the existing custody arrangement’ ….” Additionally, “Family Court properly precluded much of the father’s testimony that either consisted of, or was based upon, uncorroborated statements by the child. The remainder of his testimony — that the child’s grades had slipped at one point, but then had improved, that the mother gave the child her phone back without discussing it with him, and that he had seen pictures of the child on Facebook that showed her kissing a boy in the back seat of a car, and giving the middle finger — simply did not establish a change in circumstances since the entry of the prior order.” It is best practice for attorneys either petitioning or defending custody modification cases to be familiar with the seminal Court of Appeals case Eschbach v Eschbach, 56 NY2d 167 (1982). A sample motion to dismiss a custody modification is available on NYSDA’s Family Defense Resource page. 

NYC Law Enforcement Lookup Available

The Law Enforcement Lookup (LELU), an extension of the Legal Aid Society’s Cop Accountability Project (CAP), provides one-stop access to law enforcement misconduct data in New York City. Intended to empower organizations and communities in the City to hold police accountable for civil rights violations, LELU could also provide attorneys or litigants outside NYC with information relevant to past City convictions or incidents that could impact current proceedings.

The increase in available information about police officers and other law enforcement personnel stems in great part from the repeal of Civil Rights Law 50-a, which previously protected disciplinary records. NYSDA has presented training and published information to help defenders access these records, which too often remain difficult to get. Most recently, 50-a was included in topics covered at the Criminal and Family Defense Update on October 29th; defenders who missed the training can request materials from the Backup Center. On a broader front, NYSDA Board Member Cynthia Conti-Cook has written a law journal article on the impact of 50-a’s repeal on the quest for police accountability and the need for “independent databases that obtain, organize, and open police misconduct information.”

Empire Justice Center’s Civil Rights Practice Group’s New Project on Police Reform and Pretext Stops  

The Civil Rights Practice Group of the Empire Justice Center is creating a project on police reform. The Empire Justice Center is a legal services organization that works to ensure that the law is applied equally to all New Yorkers, and seeks to challenge injustice and inequity. Jill Paperno, a public defender for 35 years and past Acting Public Defender for Monroe County, will lead this project, collaborating with other staff attorneys Maggie Robb, Melinda Fithen, and Katie Blum. 

The initial focus will be on the area of pretext stops. There are many problems with this selective and discriminatory policing. The Practice Group intends to assess the scope of the problem and then recommend solutions to end racial disparities in policing. In the coming months they will be gathering information in a variety of ways, including through meetings with community groups, distribution of questionnaires to organizations that assist individuals who have been subjected to pretext stops, and seeking materials through the Freedom of Information Law.

More details on this project can be found here. Anyone interested in inviting the Empire Justice Center’s Civil Rights Practice Group to do a presentation on pretext stops and then conducting a listening session on participants’ experiences, sharing information, or volunteering to assist in this project should contact Jill Paperno at 585-295-5739 or jpaperno@empirejustice.org.

Digital Forensics Newsletter Highlights Discovery, Surveillance Issues

Doorbell surveillance, police surveillance technology, and biometric surveillance are among the topics in the recent edition of Decrypting a Defense, the monthly newsletter of the Legal Aid Society’s Digital Forensics Unit. Some of the information is focused on New York City; for instance, police there announced their participation in Amazon’s Ring Neighbors app, and the City’s Department of Investigation issued a report making 15 recommendations to improve police compliance with the City’s Public Oversight of Surveillance Technology (POST) Act. But concerns about the Amazon app have broad application, and the biometric surveillance article discusses both national trends and proposed New York State legislation. As to the latter, “the Biometrics Ban Bill prohibits not only the use of facial recognition technology, but numerous other forms of biometric surveillance by law enforcement and government agencies.”

The newsletter includes the first of a three-part series on digital forensics discovery in criminal cases. It talks about call detail records, kept by companies “for billing and engineering purposes – not specifically for legal use,” and cautions against trying to use the information without the assistance of a forensic examiner or analyst. The newsletter also includes links to numerous articles and reports, as well as upcoming events.

OCA Seeks Comments on E-Filing

The Office of Court Administration is seeking comments on the Unified Court System’s electronic filing system. In particular, feedback is sought on legislative amendments to expand e-filing in all trial courts and in any class of case. The proposal does not change current consultation requirements or opt-out possibilities.

Any comments must be submitted by November 30 to efilingcomments@nycourts.gov. More information can be found on the Unified Court System website.

HHS Guidance- Stop Charging Parents for Foster Care  

As reported by the Center on Budget and Policy Priorities, “[r]ecent guidance from the Health and Human Services (HHS) Administration for Children & Families allows states to end the harmful practice of charging parents for costs associated with their child being in foster care. Implementing this guidance will be crucial in helping create more equitable child support and child welfare programs that put the needs of children first [footnote omitted].” This change removes one of many obstacles that poor parents face when trying to reunite with children, ripped away from them by the family regulatory system. The guidance reads in part (at Question 5) that, “[i]t is almost never the case that securing an assignment of the rights to child support is in the best interests of a child during the time the child is in title IV-E foster care. Parent(s) are typically required to engage in a variety of efforts and services to be successfully reunified with their child. This may include regular family time, therapy, parenting courses, and/or treatment for a substance use disorder. It’s likely that reducing the income of the child’s parent(s) could impede their ability to engage in reunification efforts, potentially extending the time the child spends in foster care.” The letter announcing the change “encourages child welfare agencies to make this important change in support of children and families,” and to the extent that agencies have data systems that need to be updated to effectively implement the policy, there may be funds available to make changes. Some states have announced changes and we will monitor changes in New York’s policies.

ILS Publishes Annual Report on Quality Improvement and Caseload Relief  

For the first time, the Office of Indigent Legal Services (ILS) simultaneously published their Quality Improvement and Caseload reports. The reports provide both qualitative and quantitative impressions of the office space, weighted caseloads, case management systems, and technological infrastructure of institutional defenders and assigned counsel programs (ACPs) across the state.  

In terms of attrition, one-third of the institutional providers reported fewer full-time attorneys in 2021 than 2020. “Mandated defense providers report receiving far fewer applications for positions than they have in the past,” the reports finds, “and often the applicants lack the requisite experience, qualifications, or demonstrated commitment needed for the posted positions.” In terms of assigned counsel programs, the report concludes that “with the hourly rates being stagnant for so long, ACPs across the state are bleeding attorneys, and very few have the attorney capacity needed to accept overflow cases in addition to the conflict cases they must accept.” 

The report also contrasts criminal defense representation and parental representation. In terms of the former, “it highlights the progress that can be made when there is a state fiscal commitment to improved quality—attorney caseloads are lower, spending per case is higher, and a quality improvement infrastructure is built.” However, for the latter, the “disparity highlights what happens when there is no such state commitment—defense attorneys continue to work under increasingly high caseloads with insufficient resources, and low-income parents in crisis do not receive quality representation.” The report concludes that “[t]his disparity exists despite the fact that criminal defense and parental defense are equally mandated under County Law Article 18-B and of equal importance to ILS’ statutory mission.”

NYS Family Court Celebrates 60 Years  

On Nov. 1, 2022, the Court of Appeals celebrated the 60th anniversary of the establishment of Family Court. The Family Court, which was created through an amendment to the NYS constitution in 1961 as part of a “comprehensive judicial realignment,” has a complex history dating back well beyond six decades. In honor of the occasion, Professor Meril Sobie, Pace University’s Haub’s Law School, wrote an item documenting the history of the Court. In the piece, entitled The Development of New York’s Family Court, Prof. Sobie writes, “a contemporary judge or attorney would barely have recognized the Family Court in its formative years. Although children involved in juvenile delinquency and child protective cases were granted state paid representation, implementation was gradual. Indigent adults gained representation later [footnote omitted]. Prosecutors were absent, a fact now unimaginable in a court served by county attorney offices or the New York City Law Department (judges or probation officers acted as de facto prosecutors). Proceedings continued to be largely summary. Trials were rare events, as one would expect in a lawyer-less court. Child protective jurisdiction was very limited; children were instead placed in foster care through largely unregulated ‘voluntary’ public and private social agency agreements which were never judicially reviewed (the court lacked the necessary jurisdiction).” Here are the links to the video and transcript of the November 1st ceremony. 

Representing Immigrants in New York City Specialized Court Parts

The Immigrant Defense Project (IDP) is holding a free webinar on November 30th for criminal defense attorneys, Padilla attorneys, and advocates working on criminal cases in Specialized Court Parts in New York City. Public defense practitioners are reminded to keep possible immigration consequences in mind when handling any criminal or family court proceeding, and to contact a Regional Immigration Assistance Center (RIAC) whenever representing a person who is not a citizen of the U.S. See NYSDA’s webpage of immigration resources for defenders.

Misdemeanor Cases: Anything But Petty

Misdemeanor cases are not an exception to the rule that any criminal proceeding can have immigration—and other—consequences. As a recent Inquest article notes, “petty offenses can impose punishing collateral consequences in the employment, immigration, and family contexts, to name a few realms outside of the criminal law, in ways that can follow them for years and aren’t readily grasped at the time of arrest or conviction.” The article calls for expanding the federal constitutional right to jury trials, which is currently limited to offenses carrying sentences of six months or more.

In New York, the Court of Appeals found in People v Garcia (38 NY3d 1137 [5/24/2022]) that the defendant’s “conclusory allegation that he was deportable if convicted ‘on any of the charged B misdemeanors,’ supported by a bare citation to 8 USC § 1227 (a) (2) (A) (ii), under which an alien is deportable if ‘convicted of two or more crimes involving moral turpitude, not arising out of a single scheme of criminal misconduct,’ was insufficient to establish his right to a jury trial.” But Tim Murphy’s materials for the Annual Conference note with regard to Garcia that the New York Legislature “amended CPL 340.40, effective June 1, 2022,” so that “[t]he right to a jury trial now extends to all defendants charged with misdemeanor offenses in local courts.” A summary of Garcia appears in the most recent issue of the Public Defense Backup Center REPORT.

The Consensus Rule: Rejecting Frye AND Daubert?

Understanding and applying scientific work in legal proceedings presents multiple challenges. In addition to the science itself, which is outside the expertise of many lawyers, there are legal rules that must be considered. To determine the admissibility of proffered scientific evidence in New York, courts apply the nearly 100-year-old test from Frye v United States (293 F 1013 [1923]). But in researching arguments for or against the admissibility of a particular type of evidence, lawyers find that many states and the federal courts apply the test from Daubert v Merrell Dow Pharmaceuticals, 509 US 579 (1993). Some states have devised combinations or modifications; the Expert Institute has posted a list of what tests apply where. A law professor now suggests that Daubert—and Frye—are wrong. The Consensus Rule: A New Approach to Scientific Evidence proposes that “[w]hen dealing with expert topics, the legal system should not ask factfinders the actual substantive questions, but instead should reframe its questions to be deferential to the relevant expert community.” While drawing mainly from toxic tort law, leaving the application of “the consensus rule” in other legal arenas to future work, the article notes “the shaky empirical underpinnings of criminal forensics” and the “politicization” of judicial scrutiny of expert evidence. The “strictness of Daubert in the civil context (thereby helping corporate defendants),” the article says, “is matched only by the laxness of its application in the criminal (thereby helping prosecutors).” Whether attorneys find value in the proposed approach remains to be seen.

Association News

NYSDA Welcomes Brian Cummings as Staff Attorney

Brian Cummings has joined NYSDA as a Staff Attorney. He specializes in digital forensics and electronic discovery, focusing on evidence obtained from mobile phones, wireless networks, and video cameras. Prior to joining NYSDA, he worked as both an attorney and investigator in the Monroe County Public Defender’s Office in Rochester, NY. He holds CCO, CCPA, and CCME certifications from Cellebrite for mobile device forensics and is certified by the Law Enforcement and Emergency Services Video Association as a Forensic Video Technician. He received his J.D. and B.S. from SUNY Buffalo. Brian can be reached at bcummings@nysda.org.

June-October Issue of the Backup Center REPORT Now Online

The June-October 2022 issue of NYSDA’s newsletter, the Public Defense Backup Center REPORT, is available on the NYSDA website. NYSDA members will receive a hard copy of the issue when printing and mailing are completed. If you have any questions, please contact the Backup Center at info@nysda.org or 518-465-3524.

Upcoming Training

Thursday, December 1, 2022, 12:30 – 2:00 pm: Leveraging FCA 1046 to Get in the Right Evidence (business records, hearsay, and…), with Keith Baumann, Supervising Attorney & Training Director, Family Defense Practice at The Bronx Defenders, and Allaina Sines, Attorney, Family Defense Practice at The Bronx Defenders. This program will cover tactics and techniques for leveraging the most hotly contested FCA 1046 evidentiary issues in Article 10 hearings, including business records and hearsay. There is no cost for this web training, but pre-registration is required. Register here.

Thursday, December 8, 2022, 12:00 – 2:00 pm: Criminal Appeals Basics: Best Practices for Successful Appeals in Criminal Cases, with Drew DuBrin, Appeals Bureau Chief, Monroe County Public Defender’s Office, and Clea Weiss, Assistant Public Defender, Monroe County Public Defender’s Office. There is no cost for this web training, but pre-registration is required. Register here.

56th Annual Meeting and Conference: July 30-August 1, 2023. The Annual Meeting and Conference will be held at the end of July at the Saratoga Hilton in downtown Saratoga Springs. We are proud to expand our programming by offering training and networking opportunities for criminal defense and family defense attorneys and members of the defense team. Information about hotel reservations will be available soon.