Latest Executive Order Addresses Criminal and Family Court Proceedings
On Nov. 3, 2020, Governor Cuomo issued Executive Order (EO) 202.72, which continues the suspensions and modifications of law as set forth in prior EOs through Dec. 3, 2020, except:

  • Pursuant to Executive Order 202.67, the suspension for civil cases in Executive Order 202.8, as modified and extended in subsequent Executive Orders, that tolled any specific time limit for the commencement, filing, or service of any legal action, notice, motion, or other process or proceeding as prescribed by the procedural laws of the state, including but not limited to the family court act, the civil practice law and rules, the court of claims act, the surrogate’s court procedure act, and the uniform court acts, or by any statute, local law, ordinance, order, rule, or regulation, or part thereof, is hereby no longer in effect as of November 4, 2020, provided any criminal procedure law suspension remains in effect and provided that all suspensions of the Family Court Act remain in effect until November 18, 2020 and thereafter continue to remain in effect for those juvenile delinquency matters not involving a detained youth and for those child neglect proceedings not involving foster care.

A document with excerpts from Executive Orders 202.8, 202.14, 202.28, 202.38, 202.48, 202.55, 202.60, 202.67, 202.72 is available here . If you have questions about the EOs, please contact the Public Defense Backup Center: info@nysda.org, web contact form, or (518) 465-3524

Understanding the Support Magistrate Objection Process
Attorney and author Joel R. Brandes published an instructional article in the New York Law Journal entitled “Understanding the Support Magistrate Objection Process.” It reminds lawyers that, “[a]n attorney representing a client in a Family Court support matter must have a thorough understanding of the sometimes confusing objection process to prevent the dismissal of his clients’ objections and preserve her right to appeal.” Brandes refers attorneys to Family Court Act 439(e), which governs the filing of objections to a final order of a support magistrate. Brandes further reminds attorneys of 22 NYCRR 205.36(b), which provides, “[a]t the time of the entry of the order of support, the clerk of the court shall cause a copy of the findings of fact and order of support to be served either in person or by mail upon the parties to the proceeding or their attorneys. When the findings and order are transmitted to a party appearing pro se, they shall be accompanied by information about the objection process, including the requirements for a transcript, the time limitations governing the filing of objections and rebuttals, and the necessity for affidavits of service on the opposing party of all papers filed with the court.” Only once the court has completed its statutorily required service to the parties, do the time limits to file objections to that order start to run.

For any questions related to this or any other family court issue please contact Family Court Staff Attorney Kimberly Bode at kbode@nysda.org.

Committee on Open Government Advisory Opinion: Agencies Must Comply with FOIL Time Limits
The advisory opinion, dated Sept. 21, 2020 discusses the time limitations set forth in the Freedom of Information Law (FOIL), Public Officers Law article 6, and its regulations in connection with a request submitted to the Bronx District Attorney’s Office:
“[i]n our view, none of the Governor’s executive orders relating to the COVID-19 disaster emergency, including Executive Order 202.8 which addresses statutes of limitation for commencing actions in the New York State courts as set forth in the state’s procedural laws, suspends the time limits applicable to an agency’s obligation to respond to a FOIL request or a FOIL appeal. All agencies continue to be required to comply with the time limits set forth in the FOIL and related regulations promulgated by the Committee on Open Government.”

The opinion also addressed the question of what actions an agency’s FOIL appeal officer may take upon a constructive denial of a FOIL request: “[t]here is nothing in the FOIL that authorizes a FOIL appeal officer to ‘remand’ a FOIL request back to the records access officer for further review. The FOIL states that the appeal officer is obligated to either fully explain in writing the reasons for further denial ‘or provide access to the record sought.’ In our view, the appeal determination ‘remanding’ your request to the FOIL officer for processing is not sufficient to comply with law.”
 
Judge Allows NYCLU to Join Police Disciplinary Records Suit in Schenectady
As reported in the Times Union last week, Schenectady County Supreme Court Judge Mark Powers has conditionally granted the New York Civil Liberties Union (NYCLU) petition to intervene in a suit regarding access to records regarding “unfounded and unsubstantiated accusations of officer misconduct” and a “counseling notice.” The local police union sued the City of Schenectady, seeking to block the release of such records regarding a specific officer, Brian Pommer, “and effectively all officers in the police department ….” The NYCLU and news organizations submitted FOIL requests for Pommer’s records after he “was caught on video apparently kneeling on the neck or head of a vandalism suspect in July.” “The union did not contest the release of substantiated disciplinary complaints and Powers ruled last month that the city was free to disclose those records, which showed Pommer was suspended for three days earlier this year for failing to enforce social distancing rules at a local ice cream shop that was eventually forced to close over health violations.” While the court allowed the NYCLU to intervene in the suit, the NYCLU “is prohibited from publicly releasing any of the sealed court filings related to the case that they will now have access to.” 

Rensselaer County DA Seeks Protective Order Regarding Video That May Show Police Brutality
In a case involving the arrest of an activist for low-level charges, the prosecution sought a protective order limiting disclosure of a video from the police booking area that may support the activist’s claim that he was subjected to police brutality. As reported in the Times Union, in addition to this case, defense attorneys have “said that they have repeatedly been unable to obtain police personnel records in courts in the county. The district attorney’s office said it is working with local police agencies on this matter after recent changes in state law no longer shield police files from public scrutiny.” The Times Union filed a FOIL request “with the city of Troy for a copy of the video on Aug. 27, six days after the incident at the police station. The only response the city has provided is that the request was sent to the appropriate department. A Times Union request for more information filed Tuesday was not answered as of the city’s close of business Wednesday.”

Since there has been heavy pushback throughout the state for disclosing police disciplinary records, NYSDA has created a Law Enforcement Resources webpage with various links to assist defenders. NYSDA encourages attorneys to contact the Backup Center if you need additional assistance: web contact form, info@nysda.org, or (518) 465-3524. Also, NYSDA will be hosting a CLE program, Focus on FOIL, Discovery under CPL article 245, and the Repeal of Civil Rights Law 50-a, on Dec. 9, 2020. More information and program registration will be available soon.
 
Two-Part Series on Police Violence in Communities of Color and People with Disabilities
The National Association for Rights Protection and Advocacy (NARPA), New York Lawyers for the Public Interest (NYLPI), the Yale Program for Recovery and Community Health, and Correct Crisis Intervention Today-NYC (CCIT-NYC) are co-sponsoring a “two-part series with discussions about police violence in communities of color and against people with disabilities.” From the program announcement:
 
Description of the November 12 Presentation: Centered on the body-worn camera footage of the police killing of Miguel Richards while he experienced a mental health crisis in his home, this roundtable will underscore the problems with police response to mental health crises and the need for reform.
 
Description of the November 16 Presentation: This roundtable will highlight alternatives to current methods of police response to mental health crises and present strategies to implement non-police responses.

NAPD Issues Policy Statement on Physical Space & Practice Components
The National Association for Public Defense (NAPD) has issued a “Policy Statement on Proper Professional Space, Equipment, Confidential Communications with Clients, Supporting Services for Public Defense.” The Oct. 15, 2020, statement is available here. Focused on what is necessary for provision of meaningful representation, the statement sets out key requirements like the ability to have confidential communications with clients and addresses practical features needed to meet those requirements. “Confidentiality requires appropriate space where conversations are private and not monitored other than by sight.” [Footnote omitted.] Both defense offices and other spaces where client communications occur are addressed. So too are physical and fiscal components of practice such as office equipment and resources and financial support of staff expenses such as travel required to perform meaningful representation. “‘We urge all public defense leaders and those who fund their work to provide the professional space, equipment, communication and supporting services for public defense,’” NAPD Steering Committee Chair Derwyn Bunton says in the blog post announcing the Policy Statement.

New York defenders should note that state standards include similar requirements. The Indigent Legal Services Office (ILS) general trial standards require counties and programs to ensure that defenders can interview clients “in a setting in which client confidentiality can be maintained and a client/attorney relationship can be established” (Standard 5[b]), and the assigned counsel standards say programs should “ensure that private meeting space is available to panel attorneys for in-person meetings with clients and confidential phone conversations with incarcerated clients.” (Commentary to Standard 4.1, and see Standard 4.4). ILS also calls for appropriately resourced office space (Trial Standards, Standard 10[a]).

Michigan Adopts Independence Standard for Public Defense
The Michigan Indigent Defense Commission (MIDC), created in 2013, is statutorily required to “establish minimum standards, rules, and procedures to” effectuate, among other things, that “[t]he delivery of indigent criminal defense services must be independent of the judiciary ….” In a survey of local courts reported in February 2016, MIDC said that “[l]ocal courts in Michigan have come under fire for their lack of independence for many years, and the findings of the MIDC’s first survey confirmed these concerns.” [Footnote omitted.] Despite the gravity of such findings, independence was not included in the first four standards proposed by MIDC, which were approved by the Department of Licensing and Regulatory Affairs (LARA) in 2017. A standard mandating independence was the lead standard in the next set of standards proposed by MIDC, in 2018; it is that standard that LARA just approved.
 
As a Detroit Free Press article noted, “State reform will cut the clout of judges in picking lawyers for poor people.” Having judges appoint lawyers and determine what resources they can access causes “concerns that court-appointed attorneys may not always mount a vigorous defense for fear of angering judges and reducing their chance of getting additional court-appointed assignments,” the article said. Announcing the standard’s approval, the LARA website posted approving comments from several officials including Michigan’s Governor, which were reported by the Detroit News.
 
In New York, the Indigent Legal Services Office has issued standards that call for appointment of counsel to be independent and free from improper outside influence and control (see Standard 1, here, and Standard 2.3, here). Independence is still a problem in many jurisdictions in New York; NYSDA continues to advocate for public defense independence and urges others to push for independence around the state.

City Parents and Advocates Highlight Disparities in the Child Welfare System
Last week the New York City Council’s Committee on General Welfare held a hearing on Racial Disparities in Child Welfare, in an attempt to address the systemic racism that exists in the child welfare system. Among the people who gave testimony was New York City Administration for Children’s Services (ACS) Commissioner David Hansell. He testified to his concern that the agency’s own statistics in calendar year 2019 showed significant racial disparities, such as that Black/African American children were represented in reports to the State’s Central Register (SCR) at a rate of 41.4 percent. This is a drastic overrepresentation, considering that Black and African American children make up only 23 percent of the NYC child population. He further stated that his agency is taking “numerous steps toward addressing disparities among families that are reported to the SCR, given that the largest racial and ethnic disparity we see is at this initial crucial point.” He referred to ACS’ Equity Action Plan, required by a City local law, “to examine and address the ways in which our work disproportionately impacts children and families of color.” This plan was created in 2017 to “identify policies and practices that may be implemented to address disparate outcomes on the basis of, at a minimum, gender, race, income and sexual orientation, and to create ‘equity action plans’ to address disparate outcomes the agencies identified.”
 
Also testifying at the hearing were parents, advocates, scholars, and nonprofit agency heads, sounding the alarm that ACS’s efforts to stem racism within the system were not nearly enough. As reported by the Imprint Youth and Family News, among those to speak at the hearing was parent Taylor Thomas. Thomas is a social worker in the Bronx, who is also Black. She described a nightmare scenario that started when “[s]he and her partner rushed their 4-month-old to the hospital after she fell out of bed ….” She described being treated as a criminal rather than a patient’s mother, when the medical staff at the hospital contacted the SCR to report them for suspected child abuse. This started a chain of events that began with her being “grilled” by police and social workers. “Finally, she said, after months of being forced to live without her partner, Joseph, the family reunited, happy but scarred and fearful of every knock on the door.” To hear the nearly 5 hours of testimony, as well as to see the agenda and related documents from the Oct. 28, 2020, City Council hearing, click here and scroll down to October 28th and select the meeting details link for the Oversight-Racial Disparities in the Child Welfare System hearing. Ms. Thomas’s testimony begins at 3:23:40.

Outbreaks at Greene and Elmira Correctional Facilities: Advocates Call Out Officials on COVID-19 Response; Ask the Governor to Grant Clemencies to Elders 
Advocacy groups, including the Release Aging People in Prison Campaign, VOCAL-NY, the Center for Community Alternatives, and All of Us and, garnered media coverage throughout the past week since the outbreak inside the DOCCS facilities. News13 reported on a rally at Greene Correctional Facility; Shaun Young, from All of Us, was quoted as saying: “It’s intolerable. There’s no reason why like other states Cuomo isn’t releasing the most vulnerable of our population to make sure they’re safe ….”

Livingston County News reported on the issue as well. Several hundred protesters gathered at four locations, including outside Elmira Correctional Facility in Chemung County, where there is an active state virus microcluster, and at the Capitol in Albany. “‘Mass incarceration as we know now is a public health crisis,’ said Marvin Mayfield, statewide organizer at Center for Community Alternatives, who argued New York inmates are housed in increasingly unsafe and inhumane conditions amid the COVID-19 emergency.” Mayfield went on to say: “‘We demand Gov. Cuomo, use your executive power to grant clemency for all medically vulnerable incarcerated people, those within a year of their release date or on technical parole violation ….”
 
Also disturbed by the spread of COVID-19, News13 reported that Greene County leaders are demanding that the Governor and the Department of Corrections and Community Supervision take aggressive action. “They say the recent spike in cases is due to the lack of testing performed by the Department of Corrections and Community Supervision on employees.”
 
Both Greene and Elmira Correctional Facilities have been closed to visits since Oct. 21, 2020, and Southport Correctional Facility stopped visitation as of Oct. 25, all due to COVID-19 outbreaks. For more information, visit the Department of Corrections and Community Supervision COVID-19 page at https://doccs.ny.gov/doccs-covid-19-report.
 
COVID-19 Could Leave Lasting Effect on Mental Health in City Jails
The above-titled Oct. 27, 2020 article in Bedford and Bowery reported that “one of the virus’ longer-lasting effects has been on people with mental health and substance abuse issues incarcerated in city jails, according to attorneys and advocates, even as the number of cases among this population has waned in recent months.” New York County Defender Services attorney Katherine Bajuk “said that a number of her clients had been deemed unfit to stand trial after suffering a downturn in their mental health during the pandemic. As staffing and direct interaction with inmates was reduced in the spring, many lost access to mental health treatment or failed to take their medications due to a lack of in-person reminders, Bajuk said.”

Critique of Bite Mark Denial Examines Resistance to Reform
An article in the Albany Law Review takes on an editorial by a group of forensic odontologists defending the debunked “science” of bite mark evidence. The article, by Marvin Zalman and James Windell, offers insights not only about bite-mark champions but about arduous resistance to more general forensic science reform. “[W]hile we critique Epidermis and Enamel as the weakly reasoned polemic that it is, it should be read as part of a larger counter attack by some ‘industry’ forensic scientists against the movement to place the forensic sciences on a more scientific base, to improve the reliability of some feature-comparison disciplines, and where needed, to remove weaker methods from use by prosecutors and courts.” Part II of the article offers a summary of findings challenging bite mark evidence’s value. The discussion includes an analytical approach that differentiates the field of bite mark evidence (and other forensic sciences) from “research science.” The section provides a concise source of information for lawyers looking to challenge prosecution bite mark evidence.
 
This article is one of many pieces that seek to put and keep bite-mark evidence in the “junk science” bin. For example, Radley Balko wrote a 2015 series in the Washington Post, as noted in the Feb. 27, 2015, edition of News Picks.


Association News

Upcoming NYSDA Online Trainings

Friday, November 20, 9:00 am -- 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+. Tuition assistance is available; please email training@nysda.org for more information. To register, click here. Note: Our website platform has been experiencing intermittent outages. If you are unable to register online, please send an email to training@nysda.org and we will get you registered.

Save the Date
  • November 13, 2020: Training on Diversity, Inclusion & Elimination of Bias and the attorney-client relationship, with Jill Paperno, Esq. (First Assistant Public Defender, Monroe County Public Defender’s Office) and Tonya McClary, Esq. (Police Oversight Monitor, Dallas, TX). Co-sponsored by the Onondaga Assigned Counsel program.
  • December 3, 2020: Border Consequences of VTL 1192 Convictions
  • December 9, 2020, 1:00 – 3:00 pm: Focus on FOIL, Discovery under CPL article 245, and the Repeal of Civil Rights Law 50-a

For more information on these and other NYSDA trainings, please contact Megan (Meegan) O’Toole at training@nysda.org.