New BWC Audit Resource from the Discovery & Forensic Support Unit 

NYSDA’s Discovery and Forensic Support Unit has created a new resource for litigating discovery issues involving body worn camera (BWC) audit trails. This resource, “BWC Audit Trails Fall Within Automatic Discovery,” guides you through arguing how BWC audit trails are relevant to and relate to the subject matter of your case from conferring with the prosecution to moving to invalidate a certificate of compliance if audit trails are not disclosed.

Court of Appeals Discovery Decision: People v Fuentes

Since the 2020 statutory overhaul, few discovery cases have reached the Court of Appeals. Last month, the Court decided People v Fuentes (2025 NY Slip Op 05872). The question before the Court of Appeals was “whether the People's [Certificates of Compliance] COCs were invalid because they failed to first disclose a police Internal Affairs Bureau (IAB) report concerning misconduct allegations against the arresting officer arising from an unrelated incident.” The key issues were interpretation of the statutory phrase “related to the subject matter of the case” and determining impeachment value of the contents of an IAB report considering other documents disclosed. Judge Singas authored the majority opinion with Chief Judge Wilson offering a scathing dissent.

Fuentes’s defense team moved to dismiss for untimely disclosure of material that tends to impeach. Citing Brady/Giglio, and CPL 245.20(1)(k)(iv), the defense argued Fuentes was entitled to the arresting Officer Congedo’s Internal Affairs Bureau (IAB) report related to another incident, which was the subject of a federal lawsuit. The federal lawsuit named Congedo as a defendant. The prosecution provided the bare minimum information related to the complaint associated with that civil lawsuit with a supplementary COC. However, the prosecution failed to provide the IAB report itself within 90 days and the trial court dismissed the case. The Appellate Term reversed, reinstated the accusatory instrument, and remanded to the trial court. Ultimately, the trial court determined that the IAB record was not “related to the subject matter” of the instant case.

Examining the contents of the IAB report itself, the Court of Appeals found that the report contained witness interviews that did not mention the arresting officer and did not describe any misconduct. The majority also determined that the IAB report did not provide specific details that would not also be found in the disclosed amended complaint of the civil suit. Ultimately, the Court reasoned that the content of the report did not negatively impact the officer’s credibility and had no impeachment value; therefore, the prosecution was not derelict in its disclosure duties, and the Appellate Term decision should be affirmed.

Chief Judge Wilson dissented. He found that there were critical details contained in the IAB report which were not contained in the civil suit complaint and the IAB report should have been disclosed.

It is important to note that updated discovery language became effective on August 7, 2025, and the majority decision alleged this case was decided with the prior language in mind. Chief Judge Wilson disagreed, stating, “What the majority has done, without saying so, is engrafted the 2025 amendment’s no prejudice factor on to the preexisting statute and rendered it dispositive of the outcome in the case.” We previously provided a brief summary of this case in our October 29, 2025 News Picks from NYSDA Staff.

Court of Appeals Reverses Termination of Parental Rights

In recent years, there has been little good news from the Court of Appeals relating to parental rights and family integrity. Fortunately, Matter of K.Y.Z. (2025 NY Slip Op 0578) offers welcome and positive news for parents caught up in the web of “child protective services” (CPS). In a scathing 4-3 decision, the majority in Matter of K.Y.Z. called out the Administration for Children Services (ACS) for falling far short of its statutorily mandated obligation to make “diligent efforts” to reunify families when children have been removed from their home and placed in foster care. The majority writes, “[i]n short, in this proceeding, rather than foster reunification, almost all of the child services agency's actions—and its failures to take action—ensured that the parent-child bond disintegrated. Thus, the child services agency failed to meet its burden as a matter of law, and we reverse.”

As family defenders are well aware, parents around the state have their parental rights terminated regularly. Matter of K.Y.Z. is not going to stop that, but it does offer the potential to reduce the number of TPRs that are granted if CPS agencies heed the Court’s decision and family defenders are diligent in advocating for what their clients are entitled to from CPS, even if that means filing a contempt proceeding against the agency. The defense to a TPR starts from the first court appearance in an abuse or neglect proceeding. It is imperative for family defenders to familiarize themselves with SSL 384-b. In K.Y.Z., the Court specifically referenced SSL 384-b(1)(a)(ii) and (7)(a).

NYSDA’s Public Defense Backup Center offers numerous resources to family defenders, including videos of past training, a sample motion bank, and a list of upcoming in-person and virtual trainings. Please visit NYSDA’s website for more information. Additionally, NYSDA’s Family Court Staff Attorney, Kim Bode, is available at kbode@nysda.org for any questions related to any area of family court-mandated representation.

CAL Court of Appeals Newsletter Available

The Center for Appellate Litigation (CAL) made the current edition of its Court of Appeals Newsletter available to the public defense community on November 14th. This update lists significant criminal cases pending in the state’s highest court, including cases awaiting decisions, scheduled for argument, awaiting the scheduling of oral arguments, and those in which leave to appeal is newly granted. Issues before the court range from constitutional and procedural questions around gun possession to jury challenges to speedy trial to suppression questions and beyond. NYSDA thanks CAL for generously sharing these updates, and other resources. See the CAL webpage For the Legal Community.

Immigration Court Can Use Contents of Presentence Reports

“Presentence Reports can be considered by immigration courts for purposes of release and when making discretionary decisions,” the November issue of the Western New York Regional Immigration Assistance Center (WNY RIAC) newsletter stated. The article described the Board of Immigration Appeals’ August 28th decision in Matter of Alessandro Cotrufo, 29 I & N Dec. 264. The court “found that the probation officer’s report was reliable and relevant to the question of dangerousness because it was based on ‘the officer’s assessment of the record evidence and interviews with witnesses.’” The probation report was also said to be reliable “because it was provided to the State court for its consideration in sentencing the respondent for the convicted offenses.” A November 2024 decision by an immigration judge to release a person on a bond and alternatives to detention was vacated and the respondent ordered held without bond.

This decision provides a reminder for state defenders that presentence reports prepared in their clients’ cases can affect more than youthful offender proceedings, sentencing, conditions of imprisonment, determinations about parole release, Sex Offender Registration Act hearings, etc. in the specific cases for which the reports are prepared. Standards address counsel’s duties regarding presentence reports. See, e.g., ILS Standards for Establishing and Administering Assigned Counsel Programs, Standard 9.2., 9.2.i:

The ACP shall ensure that assigned counsel provide client-centered representation … [including] reviewing the presentence report with the client; acting to correct errors in that report; and filing a defense presentence memorandum where appropriate.” [Emphasis added.] While appellate counsel is entitled to a copy of the presentence report, factual errors are difficult if not impossible to correct after sentencing.

More News from WNY RIAC and Elsewhere

The WNY RIAC newsletter, above, also described a Second Circuit decision ruling against a noncitizen who had “applied for cancellation of removal as the parent of U.S. citizen children under the age of 21….” His children had turned 21 while the appeal was pending, and he “had not demonstrated good moral character,” given a criminal history. Other items in the newsletter include: 1) a description of what happens when someone is arrested during naturalization proceedings and 2) discussion of Early Conditional Parole for Purposes of Deportation and Conditional Parole for Deportation, which may be granted to incarcerated people when a final order of removal has been issued. Included in the article are pitfalls to accepting such a final order. The newsletter urges defenders, “[i]f you have a client who was not born in the United States, please be sure to contact [a RIAC] for advice on the immigration consequences of their conviction.”

Problems in local jails that house people in the custody of Immigration and Customs Enforcement (ICE) (see the September 30th issue of News Picks) continue. An October 15th podcast about people detained in the Orange County Jail included assertions that the quality of the video communication system was so poor it was interfering with attorney-client communication; other problems set out included poor climate control and food.

Data Collaborative Report on NYC Pretrial Detention: Judges vs Release Assessment

A report from the Data Collaborative for Justice issued in October looked at how pretrial release decisions by New York City judges aligned (or didn’t align) with recommendations from the Pretrial Release Assessment in use there. Aspects of the report may be useful to City defenders pressing courts to follow recommendations that clients be released. The findings for the period from 2021 to 2023 indicated that while the assessment recommended Release on Recognizance (ROR) for 79% of those charged with a violent felony, judges set ROR for merely 25%. For nonviolent felonies, the numbers were 77% versus 42%. For misdemeanors, ROR was recommended for 92% but was ordered for only 78%. The report said among other things “that while the Release Assessment provides equivalent recommendations across racial groups, judges give outsize—and statistically unjustified—weight to factors including criminal history and housing instability, a tendency that exacerbates racial disparities in release decisions.”

The report, Alignment with New York City’s Pretrial Release Assessment: Results for the Five Boroughs, stressed that the Release Assessment has been validated and revalidated. The report was supported by Arnold Ventures, which has a long history of creating and touting assessment tools. NYSDA has long warned about the use of algorithm-driven tools in which racial and other disparities may be embedded. Claims that current tools do not yield disparate results should be examined carefully. Proposals to combine digital risk assessment with a broadening of factors to be considered in determining pretrial release—specifically, risks to public safety—are of particular concern. See a NYStateOfPolitics.com story on October 2nd regarding one such proposal, the Pretrial Risk Overview for Threat Evaluation, Custody, and Treatment (PROTECT) Act. The Schenectady Daily Gazette editorialized in favor of such legislation on November 5th.

OCA Proposes Expanded Facility Visit Requirements for Judges

The City reported on a September Office of Court Administration memo on a proposed rule change to “create a practical program of meaningful and consistent visits by judges to correctional and other detention facilities that would reimagine and modernize this critical interaction between the [Unified Court System] and incarcerated individuals.”

The rule would amend Part 17 of the Rules of the Chief Judge to require that each judge who “regularly exercise[s] criminal or family court jurisdiction” visit “at least one prison or jail or other detention facility, as applicable, annually.” A “meaningful visit” would include “a tour of the major areas of any facility - including intake, housing areas, work education and recreation areas, dedicated housing (such as honors housing), medical and mental health facilities, special housing units, food preparation and service areas, visiting areas and special housing units” as well as “a meeting with incarcerated persons.” If adopted, the amendments would be effective January 1, 2027.

“The Boat” Heads South, but NYC Jail Reform Remains Stymied

In early November, the Vernon C. Bain Correctional Center - a dystopian jail barge used by the New York City Department of Corrections since 1992 and nicknamed “the Boat” - was finally cast off of the South Bronx and sent on its way to Louisiana to be dismantled for scrap metal.

Juval O. Scott, executive director of the Bronx Defenders, said in a statement:

“The Boat was brought to the Bronx in 1992 as a temporary facility. It leaves New York City 33 years later, having caged tens of thousands of people unable to afford bail – mostly Black and brown men – for months and sometimes years while awaiting trial.… The conditions of the Boat were deplorable, leading to the deaths of multiple New Yorkers. Its removal closes this shameful chapter in our history. Yet while we stand with those who we have represented through the years whose lives were ruined by this relic of oppression, we are clear-eyed that its legacy continues unabated on Rikers Island, where at least 12 people have died this year.”

Decommissioned as a DOC facility in 2023, the Boat’s closure was meant to be an early stage of the city’s “downsizing” of its criminal justice footprint. Yet as Scott notes, despite the 2017 City Council vote to close Rikers Island most facilities on the island are still operational and as deadly as ever.

Millions of Dollars of Taxpayer Money Wasted on Unfounded Reports, Report Finds

Hope 585, a Monroe County based family advocacy organization self-described on its website as “a relationship-centered community where marginalized youth and their families hope, heal, and thrive,” published a report laying out the real-life social and financial impact that unfounded CPS investigations have on the community, families, local government, and individuals. Key findings of the report, entitled Cost of A False Alarm: “In 2024, Monroe County conducted 6,768 Child Protective Services (CPS) investigations; approximately 76% (5,140 cases) were ultimately unfounded” and “investigations trigger lasting psychological trauma, stigmatization, and distrust in community institutions, disproportionately harming marginalized groups.” It is estimated that Monroe County spends $11.54 million investigating unfounded reports, money that could better be spent on programs aimed at helping marginalized community members. The full report can be found here.

NAS Report: “Strengthening the U.S. Medicolegal Death Investigation System: Lessons from Deaths in Custody”

Last month, the National Academies of Sciences Engineering and Medicine issued a broad report, examining the medicolegal death investigation (MLDI) system in this country through the lens of deaths in custody. A free and complete copy of the report can be read or downloaded here.

The broadest concept articulated in the Report was that our sprawling and diverse set of MLDI systems—which are administered differently from county to state levels (some of which are still paper-based)—combined with a lack of forensic pathologists contributes to a national lack of data, making the creation of much needed standards, best practices, and oversight incredibly difficult.

Pertinent points for litigation can be found in the report, including:

• A section on addressing cognitive bias of medicolegal death determinations;
• General information on the investigation process of the New York State Attorney General’s Office of Special Investigation (OSI) investigating deaths caused by police officers, peace officers, and corrections officers;
• That in New York City, autopsies have been consolidated to Brooklyn and Manhattan and “city medical examiners have stopped doing autopsies on suspected drug overdoses” (p. 40);
• That with medical examiners leaving the field, substitute testimony will likely be on the rise. This may be challenged in court as implicating the Confrontation Clause. [See Smith v Arizona and the discussion of the Supreme Court’s 2024 decision in the July 31, 2024, Edition of News Picks from NYSDA Staff]

Please see the full report for additional information.

Association News

Filaree Moore joins NYSDA's Backup Center

Filaree Moore has been a public defender for many years and comes to NYSDA from the Office of the Appellate Defender where she has been a Supervising Attorney working in the Parole Advocacy Project and DVSJA Project. Prior to that Filaree was a Supervising Attorney in the Homicide Practice at the Bronx Defenders. She started her public defense career in Colorado where she was a Deputy Public Defender at the Colorado State Office of the Public Defender. We are excited to have Filaree join our NYSDA team.

Chuck Culhane, Long-Time Client Advisory Board Member, has Died

Charles (Chuck) Culhane, who began serving on NYSDA’s Client Advisory Board in 2004, died at the age of 80 on November 14th. Chuck was a poet, a formerly incarcerated person, and a passionate opponent of the death penalty and other injustices in the criminal legal system. His activism continued until his death; if health did not allow him to be at a vigil, he wrote a letter or other communication advocating for justice. NYSDA is grateful for the time and expertise Chuck shared with us over the years. Many people will miss Chuck greatly as they work toward goals he shared.

Upcoming Training

December 9, 2025, 1:00 – 2:30 pm: From Language to Financial Barriers: Advocating for Reunification Efforts Using the Matter of K.Y.Z.

This free family defense webinar will be presented by Susannah Marsh, Litigation Supervisor, Center for Family Representation, and Emily Wall, Attorney in Charge of Appeals, Center for Family Representation. For more information and to register, click here.

December 10, 2025, 1:00 – 2:30 pm: Creative Defenses to Allegations of Drug Use in Article 10 Cases

This free webinar will be presented by Carmen Tellez, Senior Attorney, Family Defense Practice, Brooklyn Defenders, and Dr. Andrew Huhn, Associate Professor of Psychiatric and Behavioral Sciences, Johns Hopkins School of Medicine. For more information and to register, click here.

January 22, 2026, 1:00 – 2:30 pm: Raising Race in Search and Seizure Litigation

This free webinar will be presented by a team from the NAACP Legal Defense Fund: Gabriel Diaz, Senior Counsel, Morenika Fajana, Senior Counsel, and Devin McCowan, Litigation Fellow. For more information and to register, click here.

January 30, 2026, 1:00 – 2:30 pm: What Criminal Attorneys Need to Know About Family Court Practicing: Debunking Myths

This free webinar will be presented by a team from the Neighborhood Defender Service of Harlem: Zachary Dorado, Supervising Attorney, Family Defense Practice, and Alexandra Van Rooyen, Staff Attorney. For more information and to register, click here.

February 5, 2026, 1:00 pm – 5:00 pm and February 6, 2026, 8:00 am – 4:30 pm Utica, NY: Family Law Conference: Hot Topics in Family Defense This in-person only, two-day program will explore topics such as AI in Family Court, Advocating for Clients with Disabilities Using the ADA, Utilizing Cultural Competence and Community Resources for Client-Centered Representation, How Early Defense Makes for Better Family Defense Update, Giving Veteran Clients the Resources to Succeed: Using Mitigation and Trauma-Informed Representation to Advance Their Case, and more. For more information and to register, click here.

NYSDA has secured a discounted rate of $110/night at the Delta Hotel. To book a room in the discounted room block, please use the link below or contact the hotel directly at (315) 797-8010. NYSDA Room Block Booking Link. Please note that rooms are limited, and reservations must be made before January 1, 2026, to take advantage of the discounted rate.