Unanimous Court of Appeals Upholds 30.30 Dismissal for Invalid COC

The Court of Appeals has issued a unanimous decision in People v Bay (2023 NY Slip Op 06407 [12/14/2023]) concerning the discovery and speedy trial statutes as changed by the “sweeping reforms” that became effective in 2020. The Court held that, where the prosecution failed to show the exercise of due diligence and reasonable efforts to identify material subject to mandatory discovery before filing their certificate of compliance (COC), the COC was invalid. Therefore, the statement of trial readiness under CPL 30.30 was illusory. Due diligence being “a mixed question of fact and law,” the Court considered “whether the fact finder’s conclusions are supported by the record.” It found “no record support for the conclusion of the courts below.” The trial court’s order denying the 30.30 motion is to be reversed and the accusatory instrument dismissed.

Judge Halligan wrote the opinion. It describes the statutory changes made by discovery reform and rejects the prosecution’s arguments. Those included that “the propriety of a COC rests solely on good faith and reasonableness, and that the COC filed in this case cleared that bar,” “that the provision of supplemental discovery does not invalidate a prior COC, and that dismissal should be a ‘last resort’ imposed only when no other measure can cure any prejudice caused by belated disclosure.”

The decision stresses “that the discovery provisions empower—and indeed, require—the trial court to facilitate compliance on the record with these new discovery obligations.” It details the prosecution’s burden when faced with a defense 30.30 motion to dismiss based on lack of due diligence resulting in an improper COC. It states that “[i]f the prosecution fails to make” the required showing, “the COC should be deemed improper, the readiness statement stricken as illusory, and—so long as the time chargeable to the People exceeds the applicable CPL 30.30 period—the case dismissed.” The defense need not show prejudice.

Ways to avoid speedy trial dismissals are available, the opinion points out. in addition to exercising the required due diligence, prosecutors can “request additional time for discovery upon a showing of good cause (see CPL 245.70 [2]), seek ‘an individualized finding of special circumstances’ to be deemed ready despite the failure to file a ‘proper certificate’ (CPL 245.50 [3]), or try to exclude from the speedy trial calculus ‘periods of delay occasioned by exceptional circumstances’ (CPL 30.30 [4] [g]).”

Congratulations to Kayla Hardesty of the Cortland County Public Defender, who represented Mr. Bay, and to amici, the Albany County Office of the Public Defender, et al., New York State Association of Criminal Defense Lawyers, and The Legal Aid Society. The Court’s unanimous decision should aid countless defenders and clients who have been battling prosecutorial, and court, efforts to undermine or circumvent discovery reform. And, as noted in a Newsday article about the decision, the funding in the current state budget and funding in the upcoming budget are crucial to ensure compliance by prosecutors and defenders.

Court of Appeals Finds Bruen Challenges Unpreserved 

On November 21, 2023, the Court of Appeals decided six cases involving challenges to firearm convictions based on New York State Rifle & Pistol Association v Bruen. The Court found that defendants’ Bruen arguments were unpreserved in all six, despite the fact that the convictions predated the U.S. Supreme Court’s Bruen decision, and that prior New York caselaw, see, e.g., Matter of Corbett v City of New York (160 AD3d 415 [1st Dept 2018]) had foreclosed the arguments successfully made in Bruen. 

While two convictions were overturned for other reasons, the decisions themselves paint a bleak picture of what post-Bruen retroactive advocacy might look like. In People v Cabrera (2023 NY Slip Op 05968 [11/21/2023]), while defendant’s conviction was overturned for a Miranda violation, the court found that Cabrera’s post-Bruen Second Amendment claims were unpreserved. Despite Corbett, the Court held that “even in the face of adverse Appellate Division precedent, litigants are expected to preserve their constitutional challenges to facilitate potential review by this Court.” The majority were particularly swayed by this line of reasoning as the arguments in Bruen were in line with the Supreme Court’s decisions in firearms decisions like Heller and McDonald, meaning that “the arguments that Cabrera now presses were not unanticipated at the time of his trial.” 

The other five decisions all cite to Cabrera’s holding on lack of preservation. In Telfair (2023 NY Slip Op 05965), while reversing defendant’s conviction for a Molineux error, the court found Telfair’s Bruen arguments unpreserved and did not rule on his facial challenges to Penal Law 265.03(3). In David (2023 NY Slip Op 05970), while acknowledging that appellate counsel raised “raise[d] significant questions about whether, in light of Bruen, lack of licensure is an essential element” of criminal possession of a weapon and therefore must be argued to the jury, the Court found the argument unpreserved. In Garcia (2023 NY Slip Op 05969), appellate counsel argued that the trial attorney should have been allowed to voir dire on gun ownership and justification based on Bruen’s finding that 265.03 was unconstitutional. Again, the Court found the argument unpreserved. In Rivera (2023 NY Slip Op 05967), the defendant appealed his youthful offender resentencing on a firearm conviction post-Bruen, but again the Court found the argument unpreserved without reaching the defendant’s argument that “the Second Amendment bars classification of unlicensed public possession as a violent armed felony such that he should have been eligible for youthful offender status without regard to the presence or absence of mitigating circumstances.” Finally in Pastrana (2023 NY Slip Op 05966), the Court rejected appellate counsel’s argument that client’s second-degree criminal possession of a weapon conviction should be overturned based on a 2015 roadblock search, despite the fact that the rationale for the original stop had also been overturned by the Marihuana Regulation and Taxation Act.

In all six cases, The New York State Attorney General’s Office intervened to defend the constitutionality of the statutes.  

In the aftermath of the decisions, the Center for Appellate Litigation released a new edition of their continuing “Issues to Develop at Trial” series focusing on the volatile and expanding post-Bruen jurisprudence, including some important practice tips. 

Court of Appeals Takes Cues from The Innocence Project’s Amicus Curiae Brief in Ortega Decision

At issue in People v Ortega was whether admitting testimony through an expert who did not perform the autopsy was a violation of Ortega’s confrontation rights. While the Court of Appeals found that there was a violation, it concluded the error was harmless in light of other evidence of guilt and because the non-examiner’s testimony did little to nothing to affect Ortega’s Penal Law 40.15 not guilty by reason of insanity defense.

One of the more promising aspects of the decision was the Court’s reliance on arguments made within the amicus curiae brief from The Innocence Project. In their amicus brief, the attorneys guided the Court to Garlick v Lee, 1 F4th 122 (2nd Cir 2022) and U.S. Supreme Court precedent to call into question analysis previously relied upon in New York. The Court of Appeals agreed that Melendez-Diaz v Massachusetts, 557 US 305 (2009), Bullcoming v New Mexico, 564 US 647 (2011), and Williams v Illinois, 567 US 50 (2012), as well as Garlick now set the standard for applying Crawford in these forensic-based cases. Further analysis of Ortega and other cases involving the Confrontation Clause is available in Professor Michael Hutter’s December 6th New York Law Journal article.

In late September, the Supreme Court granted certiorari in Smith v Arizona, which raises the question of “[w]hether the Confrontation Clause of the Sixth Amendment permits the prosecution to present testimony by a substitute expert conveying the testimonial statements of a nontestifying forensic analyst, on the grounds that (a) the testifying expert offers some independent opinion and the analyst’s statements are offered not for their truth but to explain the expert’s opinion, and (b) the defendant did not independently seek to subpoena the analyst.” According to the SCOTUSblog, the Court will hear argument on January 10, 2024.

First and Second Departments Make Positive Decisions Regarding 50-a Repeal

In Matter of NYP Holdings, Inc. v New York City Police Department (220 AD3d 487 [10/12/2023]), the First Department ruled that the repeal of Civil Rights Law 50-a applies retroactively to records created prior to June 12, 2020 (the date of the amendment’s revocation). The court held that “[t]he legislative history clarifies that the legislature ‘[conveyed a sense of urgency’ and intended for the legislation to be remedial’ ….” (citations omitted). 

And over in the Second Department, in Matter of Newsday, LLC v. Nassau County Police Department (2023 NY Slip Op 06050 [11/22/2023]), the court found that personnel records concerning unsubstantiated complaints or allegations of misconduct are not categorically exempt from disclosure. The Nassau County Police Department argued that unsubstantiated records were exempt from disclosure under Public Officers Law 87(2)(b)’s “unwarranted invasion of personal privacy” language. The court held otherwise, finding that disclosure, “subject to redactions with particularized and specific justification,” complied with 87(2)’s provisions. In addition, the court agreed with the First Department’s holding in NYP Holdings that the repeal of 50-a applies retroactively.

Domestic Violence Survivors Justice Act (DVSJA) Resentencing Case of Interest

In People v Liz L. (2023 NY Slip Op 06008 [11/22/2023]), the Third Department reversed a lower court denial and granted a CPL 440.47 application for resentencing, reducing on its own authority the applicant’s original ten-year sentence to, essentially, time served after the defendant served over six years. The court engaged in a close review of the record of the case, which involved a manslaughter conviction in which the applicant had killed her intimate partner, finding inadequacies in the county court’s review and conclusions.

Addressing the three statutory prongs supporting a resentence, the Third Department first found that the county court misapplied the statutory language in finding that relief was not warranted because, although the applicant had been a victim of domestic violence perpetrated by the deceased, there was no evidence that they were involved in an episode of domestic violence at the time of the killing. “We agree with defendant that, in so finding, the court misapplied the language of Penal Law § 60.12 (1) (a) by requiring that the abuse occur ‘at the time of the instant offense.’ Indeed, such temporal argument would inherently invoke the defenses of duress or justification, however, the legislative history makes it clear that the DVSJA was enacted to address shortfalls in each of those defenses, ‘as victims of abuse may not be psychologically or socially capable of invoking such defenses at the time of their trials, due to their victimization and its impact on them’ (Rep of NY City Bar Criminal Justice Operations Comm, Domestic Violence Comm & Pro Bono & Legal Servs Comm, Bill Jacket, L 2019, ch 31 at 14).”

As to the second prong, the appellate court concluded that, while the county court found that the abuse was a factor in the commission of the offense, it failed to articulate a factual basis for not concluding the abuse was a significant contributing factor. Noting that the record contained evidence that, at the time of the incident, the decedent was aggressive and the applicant “felt ‘like [she] was going to lose [her] life’” and evidence of a prior police report of the decedent threatening the applicant and her sister with a knife, the Third Department held, “Upon this record, we find that the abuse suffered by defendant was a significant contributing factor to her offense (see Penal Law § 60.12 [1] [b]).”

On the final prong, the appellate court found irrelevant the county court’s determination that the applicant’s status as a victim of domestic violence had already been “factored into” her plea, as well as its comparison of her sentence with her potential sentencing exposure. The Third Department noted: “Such findings are not relevant to the application of the DVSJA (see CPL 440.47; Penal Law § 60.12). Rather … in reviewing an application under the DVSJA, Penal Law § 60.12 (1) (c) expressly provides that a determination as to whether a standard sentence would be ‘unduly harsh’ is to be made in consideration of the ‘the nature and circumstances of the crime and the history, character and condition of the defendant.’” Finding that the county court failed to adequately review and weigh the evidence in a manner consistent with the statute, the appellate court undertook a thorough examination of the record and determined that a resentence under CPL 440.47 was warranted.

Attorneys are reminded that information and resources are available on NYSDA’s DVSJA Resources webpage, and defenders seeking particular assistance or resources are encouraged to reach out to NYSDA’s DVSJA Attorney Support Project by contacting Senior Staff Attorney Stephanie Batcheller at SJBatcheller@nysda.org or (518) 465-3524 x 41.

Imposing Enhanced Sentence for Post-Plea Failure to Complete Unavailable Program was Error

An accused person who promised to complete a drug treatment program as an alternative to incarceration but was afforded neither placement in a suitable program nor an opportunity to withdraw the plea, was “entitled to the benefit of the original promise of a class A misdemeanor and to a sentence of time served.” So held the First Department in People v Cruz (2023 NY Slip Op 05695 [11/14/2023]). The claim that the sentencing court improperly imposed an enhanced sentence for post-plea conduct survived the waiver of appeal.

While the succinct Cruz decision provides no detail, the phrase “placement in a suitable program” appears to provide a route to relief for individuals who plead guilty and unsuccessfully seek addiction “services based on their gender identity, gender expression and/or sexual orientation.” Mental Hygiene Law 19.07(c), as amended by L 2023, ch 141, noted in the latest issue of the Backup Center REPORT.

November CAL Court of Appeals Update Available

The Center for Appellate Litigation (CAL) has released its November update on significant cases pending in the Court of Appeals. The week after the new update, the Court decided nearly all the cases listed on the first five pages. A few of those decisions are noted above; summaries of all will appear in the next issue of the Backup Center REPORT. A number of the decisions were defense victories, as discussed in a New York FOCUS article highlighting Judge Caitlin Halligan’s votes.

The CAL update notes several cases scheduled for argument in January, including a number that raise issues under the Sex Offender Registration Act. Other issues to be argued include whether COVID-19 safety measures deprived a defendant of meaningful participation in jury selection; questions about jury instructions relating to the justification defense; and submission to the jury of “second-degree burglary as a lesser-included-offense of second-degree burglary as a sexually motivated felony.” See the update for the full list of significant issues. NYSDA thanks CAL for sharing this resource, which also lists cases waiting to be scheduled and new leave grants, with the public defense community!

ACS Sued for Aggressive and Intrusive Investigations of a Family

A mother, on behalf of herself and her young son, filed a federal lawsuit against New York City ACS for what the complaint alleges are “numerous violations of the family’s constitutional rights in its ruthless investigations of baseless reports of abuse and neglect at their home and school.” The federal complaint, filed by Brooklyn Defender Services and the law firm of Crowell & Moring, LLP, lays out a 32-month horror story of persistent and invasive investigations by ACS employees brought on by no less than 14 anonymous complaints to the State Central Register, all of which were deemed unfounded. The complaint also alleges that ACS “has an official policy or custom of conducting aggressive and intrusive investigations into reports of abuse and neglect even when there is no reasonable basis to believe the reports may be founded and without seeking court authorization.” According to a ProPublica article, “[o]ver the past three years, the agency either has inspected her home or examined and questioned her son at school more than two dozen times. Caseworkers have sought a warrant for only three of these searches, most recently in August. All of those requests have been rejected by judges, according to court records.” A press release along with a link to the full complaint can be found here.

Preparing for Clean Slate’s Implementation Next Year

The effective date of the Clean Slate Act is Nov. 16, 2024, as noted in the November 20th edition of News Picks announcing that the Governor had signed it into law. In preparation for implementation, Clean Slate New York is holding monthly opportunities for impacted people to ask organizers what the act means, what to expect, and how to understand their eligibility. Defenders may want to let clients and the client community know about these events, on Zoom, scheduled for the 3rd Monday of every month. 

Association News

Forensic Webinar Series Continues with Three Sessions on DNA From Collection through Trial

Thursday, January 11, 2024, 2:00 – 4:00 pm: DNA Part I: From Collection Through Discovery, with Elizabeth Daniel Vasquez Director, Science & Surveillance Project, Brooklyn Defender Services, and Ashley Hart, Staff Attorney, Discovery & Forensic Support Unit, New York State Defenders Association. Details and registration information for the series are available here.

Thursday, January 18, 2024, 2:00 – 3:30 pm: DNA Part II: Motion Practice, with Jessica Goldthwaite, Staff Attorney, DNA Unit, The Legal Aid Society, and Emily Prokesch Team Leader, Discovery & Forensic Support Unit, New York State Defenders Association. Details and registration information for the series are available here.

Thursday, January 25, 2024, 2:00 – 4:00 pm: DNA Part III: Pre-Trial and Litigation with TrueAllele and STRmix, with Kate Philpott, Forensic Consultant, Affiliate Assistant Professor, Virginia Commonwealth University, and Molly Ryan, Paralegal, Federal Community Defenders for the Eastern District of PA, Former Assistant Public Defender, Forensic Division Maryland Office of the Public Defender. Details and registration information for the series are available here.

Save the Date:

Friday, January 26, 2024, 11:30 am – 1:00 pm: Paternity Matters: Litigating Complex Cases with Alexandra Buckley, Attorney at Law, The Law Office of Alexandra J. Buckley, PLLC, and Veronica Reed, Attorney at Law, The Law Office of Veronica Reed. Details and registration information are coming soon.

Wednesday, February 7, 2024, 12:30 – 2:00 pm: ICWA: What Parent Attorneys Need to Know with Shannon Smith, Executive Director, Indian Child Welfare Act Law Center. Details and registration information are coming soon.

Sunday, June 9 – Friday, June 14, 2024: NYSDA Defender Institute Basic Trial Skills Program. Our annual Basic Trial Skills Program will return in-residence to Skidmore College in Saratoga Springs. Applications will be available soon. Anyone interested should contact their defender program chief or NYSDA directly at training@nysda.org.

Don’t forget to check our Training Calendar to see the list of NYSDA’s upcoming programs.