Governor Hochul Signs Bills That Modify Order of Protection Inquiries and Firearm Seizures

On October 18th, Governor Hochul signed two bills that amend existing procedures around firearms and orders of protection.

S.6363-A/A.8102-A modifies CPL 530.14 to require, as opposed to simply allow, a court to seize firearms from a client subject to a protective order if they have “willfully fail[ed]” to previously surrender the firearm. The statute previously said a court “may” order such seizure; it now states the court “shall” order the seizure.

S.6443-B/A.8105-B also modifies CPL 530.14 and Family Court Act 842-a to require a criminal or family court judge to ask a defendant/respondent about the existence and location of any firearms owned by them when issuing a temporary order of protection. It also requires a prosecutor to make reasonable efforts to present the court with information about any firearms reasonably believed to be owned or possessed by the individual. A family court judge is required to make the inquiry of the respondent, and if the court has reason to believe that the petitioner or person protected by the order would have actual knowledge or reason to know this information, the court shall inquire of that person, outside the presence of the respondent.

We have already heard of judges using the new legislation to ask clients with no prompting whether or not they possess any firearms. As a result, it’s best to advise clients they will be asked directly about firearm possession before any appearance where a temporary or final order of protection will be issued. And counsel should be familiar with People v Havrish, 8 NY3d 389 (2007), in which the Court of Appeals held that the defendant’s surrender of an unlicensed handgun, as required by a criminal court order of protection, was privileged under the Fifth Amendment.

NYSDA Releases Discovery Checklist for VTL 1192 Cases

The NYSDA Discovery Reform Implementation page now includes a checklist for items defense attorneys should be receiving in discovery for any VTL 1192 case, or where allegations of intoxicated or impaired driving are elements of another charge.

Of course, every case is unique, and not every case will result in the creation of each of the documents and audio/visual materials listed in the checklist. On the other hand, this list is not exhaustive, and some cases may have documents not listed here. If you have a case with a document that is not included in the list, or you have any questions or comments on the checklist itself, please reach out to Staff Attorney Max Kampfner at mkampfner@nysda.org.

A Victory for Out-of-State Parents from the Court of Appeals – “ICPC” Does Not Apply to Them

The Court of Appeals in Matter of D.L. v S.B., 2022 NY Slip Op 05940 (10/25/2022) resolved a long-standing disagreement between the state’s appellate divisions on whether the Interstate Compact on the Placement of Children (ICPC) applies to out-of-state noncustodial parents seeking custody of their children who are in the custody of a NYS social services agency. The answer: it does not apply to parents. This decision comes as a rebuke to the Second Department that has consistently applied the ICPC to non-custodial parents. The result of that application was that countless children needlessly and cruelly languished in foster care while their parents were denied custody because of geography and bureaucratic red tape. In its decision, the Court of Appeals decisively holds that, “[t]he language of the statute [Social Services Law § 374-a(1) (art III) (a) & (b)] thus unambiguously limits its applicability to cases of placement for foster care or adoption—which are substitutes for parental care that are not implicated when custody of the child is granted to a noncustodial parent.” While this decision directly relates to non-respondent parents who live out of state who have children in NYS foster care as a result of someone else’s alleged abuse or neglect, there is plenty of language to be used for in-state parents seeking custody of their children, especially as it makes references to another seminal case, Nicholson v Scoppetta.

Also helpful from Matter of D.L. is the following: to apply the ICPC to parents “would be inconsistent with other components of New York’s statutory framework governing child protection” that reflect “‘the preeminence of the biological family’” and embrace “‘a policy of keeping biological families together’ whenever safely possible,” in accordance with the “‘fundamental social policy choice[,] ... binding on this Court’ to structure New York’s foster care scheme around the right of parents ‘to the care and custody of a child, superior to that of others, unless the parent has abandoned that right or is proven unfit’….”

The appellant was represented by Christine Gottlieb, Director, NYU School of Law Family Defense Clinic, who said, in response to a NYSDA request for comment: “This is a critical win for families and an important reiteration by the Court of Appeals that New York law requires keeping families together whenever safely possible. This decision was the result of collaborative efforts on this issue by family defense attorneys around the state over several years. I think it shows that vigorous courtroom advocacy works for families.”  

Racial Profiling Challenge Possible Under Robinson

In People v Jones (2022 NY Slip Op 05892 [10/20/2022]), the Third Department concluded that the standard set out in People v Robinson (97 NY2d 341 [2001]) “does not preclude a challenge to a traffic stop predicated on racial profiling, at least under our state constitution.” The Third Department held: “Whether a traffic stop was premised on racial profiling must be assessed objectively with reference to the facts and circumstances of the encounter.”

In Jones, a police lieutenant observed Mr. Jones, who is Black, and the driver of the car, a white woman, arrive at and leave a location that was under stationary surveillance due to complaints of narcotics activity. After communication with the investigator working a drug detail, the lieutenant observed the driver fail to use turn signals and told the investigator, who then stopped the car. The investigator reviewed the identification of the driver and passenger and then had Mr. Jones get out of the car and patted him down but found nothing. When the investigator said Mr. Jones had been seen in a known narcotics area, Mr. Jones said he was going to his cousin’s house. When, in the investigator’s opinion, the driver offered an inconsistent explanation, the investigator asked if there was anything illegal in the car. The driver denied that there was and refused to consent to a search; the investigator said he was calling for a K-9 unit, and Mr. Jones left. The driver eventually agreed to a search. The investigator opened the passenger door, saw a backpack, opened it, and found a gun. The driver said it was not hers and that Mr. Jones had put something in the backpack. Mr. Jones was found and taken to the station where he eventually acknowledged possessing the gun.

If viewed as a traffic stop made based on a police motivation to search for drugs, the stop would be valid, the Appellate Division said. But the defense claimed that the stop was “motivated by the racial profiling of an interracial couple.” The Third Department rejected a First Department finding that Robinson means a stop for a traffic violation, supported by probable cause, will be upheld even if “motivated by discrimination or pretext ….” See Patrolmen’s Benevolent Assn. of the City of N.Y., Inc. v City of New York, 142 AD3d 53 (2016). Jones was remanded for a hearing on the defendant’s CPL 440.10 motion and an objective analysis by the hearing court of the entire encounter.

Robinson and race was discussed in the June-Sept. 2020 issue of the Backup Center REPORT following the issuance of People v Hinshaw (35 NY3d 427 [2020]). The Center for Appellate Litigation addressed Robinson challenges in an issue of its Issues to Develop at Trial -- Racial Justice Series as noted in the July 23, 2021, edition of News Picks.

It should be noted that the Third Department denied the defendant’s ineffective assistance of counsel claim raised in his direct appeal, finding that the argument was forfeited by his unchallenged guilty plea, but concluded that his claim that his attorneys were ineffective for failing to act on his racial profiling claim, which concerned matters both in the record and outside the record, was properly addressed on appeal from the denial of his CPL 440.10 motion. As a reminder, County Law 722(5) was amended in 2019 to authorize payment to assigned appellate counsel for work done on 440 motions. For more information and resources on 440 motions, attorneys should contact the Public Defense Backup Center: info@nysda.org, contact form, or 518-465-3524.

Court Orders OCA to Disclose Internal Memorandums and Directives

A Press Release issued by the New York Civil Liberties Union (NYCLU) lauds a New York County Supreme Court order as to disclosure of Office of Court Administration (OCA) memos on interpretation of opinions and statutes. “The court’s decision is a major step in vindicating the public’s right to understand the workings of our judicial system,” said Daniel Lambright, NYCLU senior staff attorney. “Judges make decisions every day that affect the lives and rights of New Yorkers, especially the most vulnerable. It is critical that the influences behind this decision-making, which has enormous consequences for those at the mercy of the courts, are transparent to the public.” Links to the Decision and Order on Motion, their Art 78 petition, and the original FOIL request can be found through their press release.

This historic ruling will have an impact on the transparency and functions within court administration, as OCA must turn over internal memorandums and directives since 2011. NYCLU prevailed after being denied access last year when they requested documents through a FOIL request. As reported in Law360.com, OCA has 180 days to comply; the “documents include copies of all memos and directives issued since 2011 related to the OCA’s guidance to state judges on the interpretation of court decisions and statutes.” The matter was also covered in the New York Law Journal, which reported that NYCLU filed the petition “to vindicate the public’s right to know how the New York state court system operates and how the Office of Court Administration influences judicial decision-making.”

One of the instances referenced in the FOIL request and the petition was the Matter of Crawford v Ally. The controversial memorandum on this case circulated by OCA was previously covered in News Picks on Aug. 10, 2021, and was also a topic of NYSDA-led training this past year. The article on Law360.com reports NYCLU’s position regarding the document: “this memorandum instructed judges that the Appellate Division’s decision should not be interpreted as requiring live witness or nonhearsay testimony and encourages judges to ‘resist — unless absolutely necessary and appropriate — anything approaching a full testimonial hearing.’”

Justice Court Denies Public Defender Access to Records

In a case orally argued on October 14th, the Third Department is being asked to decide whether the Colonie Town Court clerk must provide records requested by Albany County’s Public Defender. According to a Times Union article, Stephen Herrick filed an Article 78 lawsuit in late 2019 seeking transcripts and other records. An acting Supreme Court Judge ordered the clerk to provide the available transcripts (some no longer existed) or show they were confidential; the clerk averred that doing so would violate the town court’s official procedure. The Times Union noted that the same clerk had denied a reporter’s request for “all public information” about a second-degree burglary case in 2018. The newspaper also published an editorial on October 20th decrying the clerk’s insistence that a docket number must be provided, not just a reasonable description of what records are sought. The case is Matter of Herrick v Town of Colonie, No. 534162.

Issues around local court records have arisen before. A convoluted decision from the Third Department seven years ago arose from efforts by Columbia County District Attorney Paul Czajka to obtain recordings and/or transcripts of proceedings in a town court. As noted in News Picks for Feb. 27, 2015, the decision addressed not the court records issue but the prosecutor’s apparent use of altered court documents in the article 78 proceeding. Czajka v Dellehunt, 125 AD3d 1177 (3d Dept 2015). A New York Law Journal article from two years earlier (1/4/2013) indicated that the Office of Court Administration (OCA) had sought to intervene in the matter as to the availability of records. According to the article, OCA “does not normally make the actual recording available” and indicated that doing so “‘is contrary to court practice and policy, and would give rise to substantial operational and fiscal problems for the courts ….’“

Local Courts Reminded Not to Delay Reporting Dispositions Due to Money Owed

Legal Services of Central New York (LSCNY) helped a client who had been denied a promotion when a background check indicated he had a pending criminal case that had, in fact, been resolved. Inquiry revealed that the village court in which the client had been sentenced to a conditional discharge following a Disorderly Conduct guilty plea had not reported the disposition. The reason: a court policy not to provide disposition information to the Division of Criminal Justice Services (DCJS) for inclusion in criminal history until outstanding surcharges were paid. As reported in the ACP Defender of the Onondaga County Bar Association Assigned Counsel Program, LSCNY went on to find that the policy was not limited to one court. They reached out to DCJS, which contacted OCA. Soon thereafter, the Office of Justice Court Support sent a memo to all town and village courts stating that “a court may not hold or fail to report a conviction until such time as the defendant has paid any fines, fees or surcharges associated with the case. The timely reporting of the final disposition of the criminal case (plea to the charge, reduction, ACOD or dismissal) is required under Executive Law sections 837-b and 837(4).”

NCSC Publishes Remote Proceedings Toolkit

The National Center for State Courts (NCSC) has developed a toolkit “to help courts consider what the best practices are for remote hearings.” It encourages the development of clear state or jurisdiction-wide policies to “promote fairness and transparency for all court users” and “improve performance, reduce costs, decrease errors, and … help courts process cases more efficiently.” The key guiding principles set out are: Equal Access; Due Process; Transparency; Fairness; Standardization; and Safety. The toolkit calls for evaluation of policies “periodically but at least once a year,” noting that virtual proceedings are still “new territory.” That means “we don’t know if there are unintended harms to litigants or promising practices that we haven’t yet identified.” This toolkit encompasses all types of courts, including criminal and family.

Two years ago, NYSDA issued a statement, Virtual/Remote Court Appearance at a Critical Stage of Criminal Proceedings Is Not the Correct Answer to Any Long-Term Question. At the June 7, 2022, public hearing of the Pandemic Practices Working Group of the Commission to Reimagine the Future of New York’s Courts, NYSDA’s Executive Director testified about issues regarding remote proceedings. Links to NYSDA’s statement, NYSDA’s testimony, and the NCSC toolkit can be found on a new NYSDA resources webpage, Virtual/Remote Proceedings. As research and experience around remote proceedings grow, more items will be added. Defenders are encouraged to contact the Backup Center with questions or information regarding virtual proceedings.

“Yet another scientific body has debunked bitemark analysis. The courts still won’t care”

A written piece with the above referenced title, authored by Radley Balko and posted on Substack, discusses the National Institute of Standards and Technology (NIST) draft study noted in the last edition of News Picks. Balko also provides a telling account of the foundations upon which bitemark analysis is premised. Balko explains: “The NIST study found no scientific evidence to support any of these assumptions, and the evidence we do have explicitly refutes two of them. Studies have consistently shown that human skin is incapable of recording and preserving the details of a bite, and competency tests have shown that not only are bitemark analysts bad at matching bites to human subjects, they often can’t even agree on what is and isn’t a human bite.” A recording of a webinar by the NIST panel should be available soon. Finally, Balko concludes, “[i]f the criminal legal system prioritized justice, we’d have long ago seen a thorough review of every bitemark conviction in the country — if not after the first series of DNA exonerations of bitemark convictions, then certainly after the NAS report cast doubt on the entire discipline. There would have been an urgent, systemic effort to identify other people who may have been wrongly convicted. Instead it’s been left to public interest lawyers to persuade reluctant courts to reopen decades-old cases.”

Association News

NYSDA Welcomes Staff Attorney Ashley Hart

Ashley Hart joins NYSDA’s Backup Center as part of our Discovery and Forensic Support Unit. She brings an extensive legal background working with experts and reviewing large volumes of discovery in her previous civil practice. Prior to law school, Ashley was a Senior Research Specialist and Lecturer at the Northeast Regional Forensic Institute where she worked on matters relating to DNA analysis, laboratory procedures, and associated technologies. Ashley holds her J.D. from Albany Law School, a M.S. in Forensic Biology from SUNY Albany, and a B.S. in Biochemistry from Vassar College. Ashley has also assisted in post-conviction representation. We are excited to welcome Ashley to the NYSDA team as we continue to build our Discovery and Forensic Support unit to support defenders around the state.

Upcoming Training

Thursday, November 3, 2022, 12:00 – 1:30 pm: Ready for Trial? The Interplay Between CPL 30.30(5) and 245.50 with Drew DuBrin, Appeals Bureau Chief, Monroe County Public Defender’s Office. There is no cost for this web training, but pre-registration is required. Register here.

Wednesday, November 9, 2022, 1:00 – 2:15 pm: Paternity: Consequences and Considerations with Sarah Holt, Assistant Conflict Defender, Monroe County Conflict Defender’s Office. This program will cover the fundamentals of handling a paternity case in family court, including a discussion of equitable estoppel. The program will also cover the effect establishing paternity can have on related family court cases. There is no cost for this web training, but pre-registration is required. Register here.

Friday, November 18, 2022, 12:30 – 2:00 pm: The Dos and Don’ts of Family Court Appellate Practice with Amy Mulzer, Senior Staff Attorney for Law and Appeals, Family Defense Practice at Brooklyn Defender Services, and Saul Zipkin, Supervising Appellate Attorney, Family Defense Practice at The Bronx Defenders. This program will cover the basics of perfecting a family court appeal in FCA article 10 and 10a cases and touch on some pre-brief considerations. Topics to be covered include filing a notice of appeal, preserving your client’s right to assigned counsel for the appeal, evaluating whether to ask for injunctive relief, brief writing, issue spotting, and crafting difficult arguments related to race. There is no cost for this web training, but pre-registration is required. Register here.

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.