The U.S. Department of Health and Human Services has announced that over $1.6 billion from the American Rescue Plan will be invested to support COVID-19 testing and mitigation measures in high-risk congregate settings. These include “homeless shelters, treatment and recovery facilities, domestic violence shelters and federal, state and local correctional facilities,” including juvenile confinement facilities.

This is welcome news, assuming the funds are actually put to use where people are confined. But focusing on the novel coronavirus alone ignores the on-going, broader lack of decent health care for incarcerated people. An article posted by The Brennan Center for Justice in June as part of its “Punitive Excess Series” discussed problems relating to COVID-19, including the silence of the Center for Disease Control about the need to release high-risk patients. The “lack of oversight and interest among our national and state health bodies,” the author said, “has reinforced the horrible reality that harming health is part of the punishment of incarceration.” And even if the focus remains on a single infectious disease, lessons may not have really been learned; a report from The Marshall Project in late June said that “the criminal justice system has not fundamentally changed. Lauren Brinkley-Rubinstein, who leads the COVID Prison Project, said she hasn’t seen the systemic change needed to address the next pandemic.”

NYSDA presented its 2021 Service of Justice Award to the public defense community for efforts that included filing writs seeking release due to the pandemic, and sharing information to help others. The dearth of accurate, up-to-date information about incarceration and the coronavirus’s prevalence and effects made those efforts more difficult—and continues to do so. For information, see e.g. the UCLA Law Covid Behind Bars Data Project; the COVID Prison Project’s NYS prison data page; Prison Policy Initiative’s page on COVID-19 and the criminal legal system; and others. On Aug. 30, 2021, the regular update of the Department of Corrections and Community Supervision (DOCCS) indicated that the total number of incarcerated people who had confirmed COVID-19 infection was 6,653, of whom 6,585 had recovered and were out of isolation and 35 people had died. Confirmed cases among staff totaled 5,402.

Specific aspects of a client’s being and circumstances impact their COVID-19 risk and the effect of efforts to combat it (just as every client’s unique circumstance affect and must be taken into account as to any aspect of their case). For example, see this post: “Corrections agencies implemented COVID-19 safety measures that are exacerbating the trauma women were already experiencing in prisons and jails, according to a new nationwide report from the LBJ School of Public Affairs at The University of Texas at Austin.”

Youth are not exempt from COVID-19 risk. On Aug. 10, 2021, several public defense providers sent a letter to the state Office of Children and Family Services (OCFS). The letter expressed concern about the adequacy of COVID-19 testing in Division of Juvenile Justice and Opportunities for Youth (DJJOY) facilities, given the low vaccination rate for both detained youth and staff. The providers requested information on the steps DJJOY has taken to ensure adequate screening and testing, conduct contact tracing, increase vaccination rates among staff. They also asked for more information on masking requirements and current vaccination statistics, and requested a meeting.

In her August 23rd message, Chief Judge Janet DiFiore has announced that the court system would be imposing a mandatory vaccination policy for judges and court staff. The New York Law Journal reported on that announcement and published another article on August 26th noting that, according to a message from Chief Administrative Judge Lawrence Marks, the requirement “will take effect Sept. 27” and that those who receive a medical or religious exemption “will have to give evidence of a weekly coronavirus test ….”

The New York Daily News reported on August 16th about defender calls for courtroom safety. “As disturbing data about the delta variant and the rate of courtroom-linked infections continues to emerge, [the Office of Court Administration] must take swift and meaningful steps to protect all who enter its courthouses in order to avoid a scenario in which greater limitations must be placed again on in-person appearances,” reads the letter sent to Hochul and other state and city officials. It was signed by The Bronx Defenders, Brooklyn Defender Services, The Legal Aid Society, Neighborhood Defender Service of Harlem, and New York County Defender Services.

Although the court system revised its mask policy in mid-August, ongoing concerns about safety of clients, attorneys, and the general public continue. The numbers of infections continue to rise and concerns about previously reported sanitation and ventilation issues have yet to be addressed. The article explains, “[T]he ventilation in court buildings’ 500 prisoner holding cells – including where women and minors are held – was not upgraded the way the ventilation in public areas was in the wake of the pandemic.”

Defenders also called on the New York City Mayor, the NYC Department of Corrections Commissioner, the Governor, and the NYS DOCCS Commissioner “to immediately address the humanitarian crisis in New York City's jails.”

We encourage defenders to contact the Backup Center if you are experiencing problems in your jurisdiction.

The Daily Record reported on People v Knorr, 2021 NY Slip Op 21218 (Henrietta Town Ct [8/16/2021]), which involved a defense challenge to a certificate of compliance because there were outstanding documents that had yet to be turned over, including the Drug Recognition Expert’s Full Rolling Log. In its decision, the court explained, “[t]he core of Defendant’s argument is that the December 21, 2020 supplemental COC was illusory because discovery was not complete at that time. Most significantly, the Log had not been produced. The Defendant argues that the Log, which includes toxicology evaluations of subjects obtained prior and subsequent to the Defendant’s evaluation is essential for evaluating the DRE’s work and for possible impeachment of the DRE’s testimony at trial. As such, production of the Log is mandated by the automatic discovery provisions of CPL § 245.20.”

“In the absence of controlling authority to guide the Court in evaluating the validity of a COC in light of the recent linkage of discovery with the speedy trial rules, the Court is guided by the views of other trial courts that have grappled with this issue. The consensus is that, ‘the guiding principles when evaluating the validity of a COC must be good faith, due diligence, and reasonableness under the circumstances.’ People v. Ferrer, 2021 NY Slip Op. 50706 at *3 (Crim Ct, Bronx County 2021); See also: People v. Perez, 2021 NY Slip Op. 2521689 at *3 (Sup Ct, Queens County 2021).”

The court examined the four factors identified by the Ferrer court when considering “the validity of a COC: ‘(1) the nature of the missing/delayed discovery, (2) prosecution’s efforts to obtain it, (3) whether the information was in the People’s possession; and if it was, the reasons for the non- or late-disclosure, and (4) the defense’s ability to independently obtain the records, and weigh them against any prejudice to the defense ….’” The court noted that, even though the prosecution has since turned over the log, they failed to “exert a good faith, diligent effort, reasonable under the circumstances, to obtain and provide existent, relevant discoverable material, even after prompting from the Defendant.” “[F]ull discovery was not timely received rendering the COC that erroneously certified discovery complete illusory.” And because more than 90 days have elapsed since arraignment, the court held that the defendant’s speedy trial rights were violated and dismissed the accusatory instrument.

NYSDA has been posting decisions on our Discovery Reform page as well as in prior editions of News Picks. We welcome feedback as well as sharing decisions with the Backup Center at info@nysda.org.

As reported in the New York Law Journal, “[t]he U.S. Court of Appeals for the Second Circuit split sharply along ideological lines Monday in holding that a police officer’s pat-down search of an armed suspect during a traffic stop did not violate Fourth Amendment protections against unreasonable search and seizure. The en banc majority ruling, joined by all of the court’s Republican-appointed judges and one Democratic appointee, came over the objection of three Democratic appointees, who said the case was an example of ‘disastrous’ precedent that gave police too much leeway to act without accountability.”

As noted in Chief Judge Pooler’s dissent, joined by Judges Calabresi and Chin, the “majority’s decision is contrary to the Fourth Amendment’s clear prohibition against unreasonable searches and seizures. It is also contrary to the decision of the state court, which, after conducting an evidentiary hearing, granted Weaver’s motion to suppress.” Regarding the majority’s emphasis on the traffic stop occurring “in a neighborhood known for gun violence, dedicating an entire section of its opinion on the neighborhood’s characteristics,” the dissent notes that the majority failed “to address that there is nothing in the record indicating that the specific locations [at issue] had any connection to crimes” and ignored “research establishing that ‘[t]he racial composition of the area and the identity of the officer are stronger predictors of whether an officer deems an area high crime than the crime rate.’” Also from the dissent: “It is time we stop ignoring the tragic ramifications of Whren [v United States]. We must not expand Whren to the point where law enforcement conduct with little public safety benefit that disproportionately impacts communities of color is beyond the reach of the Fourth Amendment.”

As reported in the Press Republican, the Third Department reversed in People v Crosse (2021 NY Slip Op 04636 [8/5/2021]), suppressing evidence obtained during a warrantless search conducted at the time of the arrest. The prosecution failed to show that the search of the defendant’s fanny pack and backpack, conducted while the defendant was in handcuffs and in the patrol vehicle, satisfied the two-pronged analysis. With regard to the first prong, the police officer conducted the search when the “defendant was incapable of grabbing the items as he was handcuffed and inside the trooper’s vehicle. The fanny pack and backpack were in the exclusive control of the trooper and defendant could not possibly gain possession of them or destroy any evidence in them ….” The appellate court also held that the prosecution “failed to establish the requisite exigent circumstances justifying a warrantless search. On the contrary, the record reflects that defendant’s demeanor and actions were not threatening, he had been pat-frisked earlier in the apartment, he was cooperative and offered no resistance when he was handcuffed and, most importantly, the circumstances of defendant’s arrest did not give rise to a reasonable belief that the fanny pack or backpack contained a weapon or dangerous instrument ….”

Less than a week before leaving office, Governor Cuomo granted clemency to ten people. News articles covering the issuance of the five pardons and five commutations, including from lohud.com and the Times Union, quoted Jose Saldana, Director of the Release Aging People in Prison campaign. “While we celebrate their return home, we know thousands of others also deserve their freedom’ …. ‘Cuomo must continue to take action in his remaining days in office by granting far more clemencies to the many incarcerated New Yorkers who can be safely released today to rejoin their families and serve their communities.’” On his last day in office he granted five more commutations and one pardon; the New York Times was among those reporting these final clemency grants.

As mentioned in the previous edition of News Picks, the Office of Children and Family Services (OCFS) introduced revised proposed regulations, which if adopted would establish standards for the administration of host family homes. The comment period closed on August 21, 2021. NYSDA’s full comments opposing the proposed regulations can be found here. NYSDA supports the concept of respite care for families in need, but opposes the unnecessary government intrusion into what should be a private family matter.

In a small but important step towards infusing more money and resources into underfunded offices that provide representation to parents in family court mandated representation cases, the NYS Office of Indigent Legal Services (ILS) has announced a request for proposals for the Upstate Family Defense (Child Welfare) Quality Improvement & Caseload Reduction Grant. “The intent of this Request for Proposals (RFP) is to support local initiatives aimed at improving the quality of legal representation provided to parents in child protective matters as defined in Family Court Act Article 10. Quality legal representation for parents in these proceedings is of heightened importance since the individuals targeted are disproportionately poor, Black and Indigenous, and typically lack the information, resources, and social capital necessary to respond effectively to government action which often includes temporary or permanent removal of a child from the parent. Improvements in this area will also promote better Family Court decision making, reduce the needless separation of children from their families, save foster care costs, diminish disparate racial impacts, and reduce long-term costs to the state and to counties.” This RFP is available only to those counties that are outside of New York City and the maximum award to any one county $500,000 over three years. The full RFP announcement with requirements and deadlines can be found here. RFP applications are due no later than Sept. 17, 2021, at 5:00 pm.

This all-day online training focused on family court custody cases will offer up to 6.5 CLE credits for $25. The program will cover topics including venue and jurisdiction; best interests; relocation; changing custody orders through litigation; extraordinary circumstances (non-parent custody and visitation); the role orders of protection, Article 10 proceedings, and indicated CPS reports play in custody determinations. The presenters are Jessica Anderson, Adele Fine, Mark Funk, Elizabeth Hendy, Rhian Jones, Amanda McHenry, Seana Sartori, Lisa Schoenfeld, and Tara Trammell. Complete program and registration information can be found here.

We are finalizing many other training programs for this fall and will be sending out annoucements soon. Questions about training? Please email training@nysda.org.

NYSDA gratefully announced its receipt of a grant from The New York Bar Foundation and the Family Law Section Fund. The funding supports NYSDA’s work to assist family defenders in providing high quality representation by arming them with necessary skills and information through continuing legal education programs. Our hope is that defenders will use the information from these programs to combat the systemic racism that exists in both family court and the family regulatory system. We are in the process of putting together our fall and winter training calendar, which will include trainings on this and other topics. We thank The New York Bar Foundation for their continued support of our work to support the family defense community.