CPL 30.30 Manual Fall 2021 Edition
Drew DuBrin’s Fall Edition of 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.
 
Court of Appeals, Over Dissent, Slaps Down Expert False Confession Testimony
Over a lengthy dissent by Judge Rivera, a split Court of Appeals recently upheld a trial court’s preclusion of testimony by an expert on false confessions proffered by the defense. While acknowledging that “[f]alse confessions elicited during custodial interrogations do exist,” the court stressed that admission of expert testimony is a matter of discretion. The majority explained in great factual detail why it found that the trial court did not abuse its discretion as a matter of law when it precluded the testimony of an “impressively credentialed researcher, properly qualified by the trial court as an expert in her field,” in this case. The researcher’s Frye hearing testimony “revealed her difficulty in linking her research on the possible causes of false confessions to the case at hand,” the majority wrote.

The majority and dissent also disagreed on a separate expert-witness issue, i.e. whether eyewitness identification expert testimony should have been allowed. People v Powell, 2021 NY Slip Op 06424 (11/18/2021).
 
November Issues to Develop at Trial Offers 2nd Amendment Tips
In the wake of recent U.S. Supreme Court arguments on Second Amendment challenges to New York’s gun licensing laws, the Center for Appellate Litigation (CAL) has provided relevant preservation tips in the November edition of its Issues to Develop at Trial (ITD). CAL says that while waiting for the Court’s decision, trial attorneys representing clients charged with simple possession should be objecting on Second Amendment grounds to ensure that any benefits from a future ruling inure to the client. “In other words, trial lawyers need to object to things that aren’t unlawful now in order to get the benefit of a change in the law later!” While motions made pending expected changes in the law will be denied, the issues will be available to the client on appeal, CAL notes.

CAL’s website includes an archive of ITD, and NYSDA again thanks CAL for making this and other resources available to the defense community. Such resources include their New York Court of Appeals Update, a list produced every two months of significant criminal cases pending in the state’s highest court, with the issues they present.

Domestic Violence Survivors Justice Act News and Updates
The number of filings for resentencing under the Domestic Violence Survivors Justice Act (DVSJA) provisions in CPL 440.47 are increasing around the state, and cases in which they are being granted show promise with two recent grants in Orange and Monroe counties. There are a number of obstacles to overcome in these cases and the attorneys doing the work continue to collaborate to ensure that ambiguities and incongruities between the legislation and its application are met with the upmost diligence.
 
Temporal Nexuses Between Abuse and Misconduct
The First Department rendered a problematic recent decision in People v Williams (198 AD3d 466 [10/12/2021]) holding, without any discussion of attendant facts, that “[a]lthough the DVSJA does not require that the abuse occur simultaneously with the offense or that the abuser be the target of the offense, and applies even in the context of nonviolent and drug offenses, the ‘at the time of’ language must create some requirement of a temporal nexus between the abuse and the offense or else it is meaningless. We find that the temporal limitation proposed by the People — that the abuse or abusive relationship be ongoing — is most consistent with the language of the statute.” (Internal citations omitted.)
The pertinent language of the statute reads: “the applicant’s claim that he or she was, at the time of the offense, a victim of domestic violence subjected to substantial physical, sexual or psychological abuse ….” CPL 440.47(2)(c). While it cannot be said that the Williams court was entirely wrong in its interpretation, such a restrictive temporal limitation may incorrectly discount circumstances that involve histories of complex trauma which can result in triggered or conditioned responses that may not seem at first blush to be ongoing at the time of the conduct underlying the criminal charges.

The impact of such restrictive interpretation, without more context and exploration of attendant psychological and sociological factors, may be felt in the resentencing provision under 440.47 as well as in the sentencing provisions of PL 60.12 for current cases where the DVSJA sentencing guidelines are sought to be applied.
 
Appellate Review of Resentencing Denials under CPL 440.47
Attorneys working on resentencing cases are reminded to file Notices of Appeal for further review where relief has been denied, or is believed to be inadequate or unauthorized. The statue specifically provides:
“3. An appeal may be taken as of right in accordance with applicable provisions of this chapter:
(a) from an order denying resentencing; or
(b) from a new sentence imposed under this provision and may be based on the grounds that (i) the term of the new sentence is harsh or excessive; or (ii) the term of the new sentence is unauthorized as a matter of law.”
The full statute can be found here.
 
For questions or assistance in DVSJA matters, please contact NYSDA’s DVSJA Attorney Support Project by emailing Stephanie Batcheller at SJBatcheller@nysda.org. More information about the DVSJA is available at https://www.nysda.org/page/DVSJA.

Members of US Congress Call on NYC Prosecutors to Answer on Excessive Bail
On Nov. 22, 2021, “Rep. Carolyn B. Maloney, Chairwoman of the Committee on Oversight and Reform, Rep. Jamie Raskin, Chairman of the Subcommittee on Civil Rights and Civil Liberties, and Committee Member Rep. Alexandria Ocasio-Cortez sent letters to five New York City District Attorneys requesting briefings on prosecutors’ use of excessive bail in the New York City court system and ways to address the overcrowding and unsafe conditions at New York correctional facilities, including Rikers Island.” Oversight Committee Requests Briefings from New York City District Attorneys on Excessive Bail. Their request for information from prosecutors on use of excessive use of bail was covered in the Gothamist and in the NY Post.
 
Rikers Closing and Staffing Shortages
The New York City Council held a hearing on Monday, Nov. 22, 2021, that was intended to be an update on the administration’s work on closing Rikers Island. However, there was no testimony, or even written comment from any representative of the incoming Eric Adams administration as to their plans. As City & State reported, the Adams administration have numerous ways they can postpone or end the planned closure, especially in light of two key incoming City Council members who campaigned against the new “borough-based” jails being built in their districts.
 
At the same time, conditions at Rikers continue to worsen. The week before the hearing, the Daily News reported that only 57% of uniformed Correction Department staff have had even one COVID vaccine dose, raising fears that when the City’s vaccine mandate goes into effect on December 1st almost half the department could be suspended. Also a Southern District judge ordered that the Department of Correction speed up their disciplinary process; there are currently 1,900 pending use of force cases, almost 600 of which are over three years old.
 
Law Profs Challenge NYS Disciplinary Procedures that Protect Prosecutors
“In an extraordinary and unprecedented lawsuit, a group of law professors, along with a civil rights organization (Civil Rights Corps), has filed a Civil Rights action in New York federal court challenging under the First Amendment the constitutionality of an obscure New York state regulation (Judiciary Law §90(10)) that arguably requires disciplinary complaints against attorneys to be kept secret unless a public sanction has been imposed, or the Appellate Division for ‘good cause’ authorizes disclosure, which almost never happens.”
 
So wrote Ellen C. Yaroshefsky and Bennett L. Gershman on November 18th in the New York Law Journal. The crux of the suit is the failure of the system to expose and end prosecutorial misconduct, instead protecting it. As a media release by Civil Rights Corps noted, in a quote by New York Law School professor Justin Murray, “[t]he staggering harm caused by these prosecutors’ illegal conduct has flown under the radar for years – in some cases, decades – because those in charge of the attorney discipline process have turned a blind eye ….” The federal complaint is here.
 
CCRB Legislation
As reported by Gothamist and The City, the New York City Council heard testimony on legislation that would authorize the Civilian Complaint Review Board (CCRB) to initiate their own complaints. Currently, the CCRB can only review cases after a member of the public files a complaint, or there has been a final determination of misconduct by certain governmental entities. The legislation is supported by both the CCRB and advocacy organizations like the NYCLU.
 
City Bill Requires District Attorneys to Report on Criminal Prosecutions
The City Council passed Int. 1392, which requires the city’s six district attorneys to do annual reporting on the basic functions of their offices, including the percentage of cases where they ask for bail and the number of times discovery sanctions have been imposed. It is the first time the council has enacted any legislation with regard to district attorneys.
 
NEXT CITY Highlights Uphill Battle Facing Those Caught in Family Regulatory System
In “a two-part series that highlights the uphill battle many families face in navigating the Philadelphia child welfare system,” NEXT CITY published “The Fight to Keep Families Together in Child Welfare,” and “In the Push to Keep Children With Kin and out of Foster Care, Are Families Heard?” The first article focuses on the fight to keep children from being removed from their parents, by using a holistic model of representation, such as the multi-disciplinary approach used by NYC institutional provider offices. The second article focuses on the impossible struggle that parents face to get their children returned once they are removed by the family regulatory system. The author notes “that parents and families in this situation face a ticking clock. The Adoption and Safe Families Act, passed during the Clinton administration, mandates a rush to ‘permanency,’ presuming that children who cannot be reunified with their parents in a 15-month time frame should be moved toward adoption.” Erin Miles Cloud, co-founder of the Movement for Family Power, interviewed for the article, states, ‘“I think these abuses against families, particularly families of color, are what the system was built on’ ….”
 
ILS Announces Award of Quality Improvement and Caseload Reduction Grant to Five Counties
The NYS Office of Indigent Legal Services (ILS) announced the selection of five counties to receive an Upstate Family Defense (Child Welfare) Quality Improvement & Caseload Reduction Grant. Cortland, Erie, Monroe, Steuben, and Suffolk counties will each receive up to $500,000 over a three-year period. ILS Executive Director Patricia Warth said, “[t]hese grants are an important step towards improving quality and reducing the overwhelming caseloads for attorneys representing parents in state intervention matters in these counties.” Warth continued, “[w]e also commend the nineteen additional counties that submitted thoughtful proposals which demonstrated the seriousness of purpose and commitment to high quality representation that we hope to support in the future.” These awards are tentative pending the approval of the New York State Comptroller. As reported in the July 23, 2021, issue of News Picks, ILS released Caseload Standards for Parents’ Attorneys in New York State Family Court Mandated Representation Cases, earlier this year.
 
Race, Racism, and Bias in Individual Cases and the Legal System
Racial issues continue to impact clients—and defenders—in many ways, direct and indirect. A few relevant items follow.
 
4th Department: Undisclosed Juror Prejudice Could Overturn Verdict
Reserving decision on the appeal of a criminal conviction, the Fourth Department remitted the matter in People v Woodard to the trial court for a hearing on a CPL 330.30 motion to set aside the verdict, saying summary denial had been error. The defense had provided sworn allegations, including affidavits by two jurors that “indicated that certain other jurors may have had undisclosed preexisting prejudices against people of defendant’s race that may have affected defendant’s substantial right to an impartial jury and fair trial ….” The decision was noted on NYDailyRecord.com.
 
Court System Releases One-Year Review Following Special Advisor’s Report
Chief Judge DiFiore has announced the release of a review detailing actions taken to implement the Equal Justice recommendations made in a report last year by the Special Adviser on Equal Justice in the Courts. That Special Advisor’s report was noted in the News Picks edition for Oct. 20, 2020, and remains posted on the court website. An initial look at the new report reveals these highlights.
 
To address what was described as the “#1 complaint” the Special Adviser had heard, i.e. the crowded, “under-resourced, over-burdened” court system and the resulting “dehumanizing” effects, the new report says the Unified Court System “will continue to advocate for increased funding for:
  • Infrastructure repair and development;
  • Technology enhancements for UCS operational systems, courtrooms, jury rooms and other public areas; and
  • Increased 18-B counsel rates for attorneys serving in criminal and family courts to ensure availability and quality legal representation for vastly under-served litigants of color.” [Footnote omitted, emphasis added.]
 
The current report also acknowledges the problems involving court officers that were noted in the Special Advisor’s report. Responses to that criticism, the review says, include improved training and implementation of “Court Office Background Investigation Anti-Bias Procedures.” The latter is summarized as a policy “to remove identifying information of court officer candidates to ensure neutral review of background investigation reports.”
 
Pushback to Less is More Act Ignores Racial Disparity
A guest column in the Democrat and Chronicle, calling out “a misinformation campaign about the reform” of parole that prohibits reincarcerating people for violations of technical conditions, notes the stark racial disparities found in such reincarceration. The column is authored by Sarah Clark and Demond Meeks, Assembly members who sponsored the Less is More Act signed into law on September 7th. They call for speedy implementation of the reform to bring about “a safer and more equitable community for all ….”
 
Resources for Dealing with Race
NYSDA and others seek to help defenders address racial issues. CAL’s ITD publication, above, has included a Racial Justice Series, highlighted in past News Picks, most recently in the October 12th edition. And NYSDA is partnering with the National Legal Aid and Defender Association and Black Public Defenders Association in a CLE, Litigating in Color, as noted below in Association News. 


Association News


Don’t Forget to Register for NYSDA’s End-of-Year Training Programs
 
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, Criminal Defense Practice: Aimee Carlisle, Senior Attorney, Legal Department; Ilona Coleman, Legal Director; Ruth Hamilton, Senior Attorney, Legal Department; and Defne Ozgediz, Senior Attorney. 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 is required by today, Monday, November 29th. 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 is required. For details and program registration, click here.

Thursday, December 9, 2021, 9:00 – 3:45 pm: 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, 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. There is no cost for this program, as it is presented with support from The New York Bar Foundation, but pre-registration is required. For details and program registration, click here.

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.

Thank You to Our Members, Defenders and Defense Team Members, and Other Supporters!
NYSDA wishes to thank our members and public defense attorneys and members of the defense team, including investigators, parent advocates, social workers, and administrative staff, and others who help represent public defense clients and work to improve the quality of public defense representation in New York State. We are grateful for your support and look forward to continuing to work with you in the coming year.
 
As always, please feel free to contact us at any time regarding our Association’s work, including the work of our Public Defense Backup Center and our Veterans Defense Program. We can be reached at (518) 465-3524, info@nysda.org, or through our website contact form. We look forward to hearing from you soon.