Governor Signs Bill Amending Definition of Rape

On January 30th, Governor Hochul signed the “Rape is Rape Act,” which was passed by the Legislature in 2023. At the same time, the Governor signed a chapter amendment to the original bill; according to the Governor’s Approval Memo 96, the chapter amendment was needed to make technical changes to prevent possible “loopholes” and to “ensure full conformity of all laws to the new definitions ….” City & State reported on the enactment.

Major changes made in Chapter 777 of the Laws of 2023 include the repeal of Penal Law 130.40, 130.45, 130.50 (third-, second-, and first-degree criminal sexual act), which criminalized oral and anal sexual conduct, and incorporation of those acts, now called oral and anal sexual contact, into first-, second-, and third-degree rape. It also replaces the term “sexual intercourse” with “vaginal sexual contact” and changes the definition from “occurs upon any penetration, however slight” to “conduct between persons consisting of contact between the penis and the vagina or vulva.” Chapter 777 also deletes references to the repealed laws in the CPL, Penal Law, CPLR, Family Court Act, and other consolidated laws. The chapter amendment, Chapter 23 of the Laws of 2024, adds references to the “former crimes” in Penal Law 130.40, 130.45, 130.50 and updates terminology in various consolidated laws. Chapter 23 also updated the effective date of the changes to September 1, 2024 (Chapter 777 had a January 1, 2024 effective date).

As with other legislative changes involving a myriad of sections of various laws, the bill and the chapter amendment warrant close reading. We hope to provide a detailed summary of the changes soon.

January Court of Appeals Update from CAL

The January edition of the Court of Appeals Update published every two months by the Center for Appellate Litigation (CAL) is now available. Among the cases noted are several dealing with the Sex Offender Registration Act (SORA) that were argued earlier this month. NYSDA reminds attorneys handling SORA matters that Alan Rosenthal’s manual, Defending Against the New Scarlet Letter: A Defense Attorney’s Guide to SORA Proceedings, 2nd Edition, is available on NYSDA’s Criminal Defense Resources webpage.

CAL’s update covering significant cases pending in the Court of Appeals also lists cases waiting to be scheduled and new leave grants. NYSDA thanks CAL for providing this and other resources to the public defense community.

Court of Appeals Holds Parole Board Training Materials Are Privileged

In December, the Court of Appeals decided Matter of Appellate Advocates v New York State Dept. of Corrections and Community Supervision (2023 NY Slip Op 06466), a Freedom of Information Law case with important attorney-client privilege ramifications.

The Court held that DOCCS properly withheld documents as exempt from a FOIL request because they were “privileged communications” created by Board of Parole counsel for the purposes of training and advice. Specifically, the Court found that the documents were reflections of counsel’s legal analysis for Commissioners’ discretionary and statutory authority.

The Court rejected the argument that the privilege is limited to communications created to respond to a “real world factual situation.” Training materials which convey confidential legal advice are privileged, even if they are not created as a response to a direct request for advice.

Criminal Jury Instructions, Evidence Guide Updated

The Guide to New York Evidence and Criminal Jury Instructions 2d (CJI2d) found on the NYS Unified Court System website have been updated.

The history webpage for the evidence guide indicates that December 2023 additions to it are: 3.07. Presumption of Regularity; 4.20. Bruton: A Defendant’s Statement Implicating Codefendant; 4.35.1. Identification; Composite Sketch; 5.50. Parent-Child Privilege; 6.02.5. Competency of Juror as a Witness or to Impeach a Verdict; and 6.03.1. Exclusion of a Disruptive Defendant. The history page says several rules were also updated.

New instructions added in December 2023, listed on the history webpage for the CJI2d, are Lawfulness of Stop, Arrest, Search and Seizure and Possession, Voluntary Surrender of Firearm. A number of other instructions are noted as having been amended.

Was Witness’s Desire for Reward Brady Material?

As reported by Undoing Time on January 7th, a Nassau County Supreme Court judge is considering a motion for new trial in a murder case where the defense was not told that the only eyewitness had asked about reward money at least twice before the trial. The assistant district attorney who handled the case at trial did not disclose the witness’s interest in the reward until the witness, hearing about the guilty verdict, immediately asked again about the reward, the article says. The prosecutor had certified before trial that all evidence, including Brady material, had been provided. Undoing Time posted the defense memorandum in support of the defendant’s motion to set aside the verdict. It relies on the federal constitutional issue dating back to Brady v Maryland (373 US 83 [1963]) [citing the 14th Amendment]; the New York constitutional counterpart set out in People v Simmons (36 NY2d 126 [1975]) and cases following; and the current New York discovery law mandating disclosure of Brady material (CPL 245.20). The case is People v Maldonado (Supreme Court, Nassau County, Criminal Term).

Neglect Finding Reversed Based on Deprivation of Counsel in Violation of NYS Constitution

A neglect finding against a mother of four was reversed and remitted for a new fact-finding hearing for a deprivation of the right to counsel. In Matter of Richard TT. (2024 NY Slip Op 00215 [1/18/2024]), the Third Department reversed the finding of the Schenectady County Family Court where the mother’s counsel withdrew from representation prior to the fact-finding hearing without notice to and in the absence of the client. In its decision, the court noted that the record did not indicate that the mother’s assigned attorney informed her that she was seeking to withdraw, nor is there record evidence that the court inquired about such notice or whether there was “good and sufficient cause” for withdrawal. The court rejected the county’s contention that a reversal would be inappropriate because there was sufficient evidence in the record to support a neglect finding, citing Third Department precedent that “‘[t]he deprivation of a party’s fundamental right to counsel is a denial of due process and requires reversal, without regard to the merits of the unrepresented party’s position.’” The dissent shared the concern about the deprivation of counsel but noted that since the mother was not present at the fact-finding hearing, the appropriate redress was a motion to vacate the default under CPLR 5015(a).

NYC Expands Family Court “Miranda Type” Warnings to All Parents, But Falls Short

The NYC Administration for Children’s Services (ACS) announced that its workers would provide all parents with a written notification of their rights during a “child welfare” investigation. As reported in the Oct. 4th edition of News Picks, this program started as a pilot in October 2023, and was limited to certain areas of Brooklyn and the Bronx, whose families experience statistically higher levels of ACS involvement than the rest of the City. As reported in the Gothamist, “[t]he move follows longstanding criticism from advocates who say ACS caseworkers’ lack of disclosure has deprived parents of important legal rights and protections.” However, “public defenders and other advocates for parents say the new disclosures are deficient and potentially misleading, and that they fall short of the protections outlined in a comprehensive ‘Miranda Rights for Families’ bill that was introduced in the last three state legislative sessions but not enacted.” NYSDA is pleased to see that NYC has taken a small step in the right direction towards advising parents of their rights. We will continue to advocate for statewide legislation that provides greater protections for all parents caught up in the state’s family regulation system.

SCOC Issues Regs on Body Image Scanners

As announced in the January 10th State Register, the State Commission on Correction (SCOC) has approved regulations governing the use of body imaging scanning for screening visitors and people incarcerated in prisons. The adopted regulations address the equipment used and caveats for its use. Pregnant individuals cannot be scanned; the equipment cannot be used for medical exams or diagnoses; and except in exigent circumstances, scans must be conducted by an officer of the same sex as the person being scanned. People who are transgender or intersex may request an officer of a specific gender.

The regulations contain a long list of circumstances in which body scanning of incarcerated persons can occur, including upon admission and when coming into or leaving the facility during “a drug or special watch” and facility-wide or random individual searches; after contact visits; and when other searches provide a basis to believe contraband is possessed. Incarcerated people who decline scans or cannot be scanned for medical reasons may be screened by alternate methods, but body imaging scans may be used where security considerations warrant it except for people who are pregnant or have diagnosed medical reasons. Visitors, in some circumstances, may be denied visitation for declining body imaging scans other than for pregnancy or diagnosed medical reasons.

The regulations were adopted as proposed. Text is available in the Oct. 4, 2023, issue of the State Register. Note that “visitor” does not include attorneys “or any individual with the statutory authority to visit, at pleasure, any correctional facility within the state.”

Hochul Plans to Close Up to Five Prisons

The Governor’s 2024-2025 budget proposal suggests the State might close five prisons, but with no indication of which facilities were being considered. The Governor’s Budget Director Blake G. Washington said that the final decision would be made by the Department of Corrections and Community Supervision, with considerations being the condition of the facility, nearby employment opportunities for staff, and where the facility’s incarcerated individuals are from.

North Country politicians, where over 10% of the state’s prisons are located, voiced disappointment across the political aisle. Democrat Billy Jones warned of economic disaster for those “who support these correctional facilities and depend on them.” Republican Dan Stec said “[c]losing them [correctional facilities] would mean a loss of good-paying jobs and have a devastating effect on our community.”

New York State has closed eight correctional facilities since 2009.

Study Using Machine Learning Tool Quantified a Conclusion About Similarities Within Fingerprints from the Same Individual

A recent study published in Science Advances has created a stir in headlines and within forensic communities. Columbia University Engineering undergraduate Gabe Guo and others have published their findings in a paper titled “Unveiling intra-person fingerprint similarity via deep contrastive learning.” Headlines have misinterpreted the results, conflating the study’s findings with conclusions about fingerprint similarities among different people.

The study quantified an alleged ground truth that fingerprints from the same person are not as unique as some might have thought. The authors claimed that prior to their study, while similarities within the same person’s set of fingerprints may have existed, no one demonstrated that in a methodical way. Some in the criminalist field have criticized the article as “overselling” something fingerprint examiners have long believed to be “intuitively true.”

Fingerprint examiners typically identify minutiae whereas the machine learning system utilized in the study used these minutia and centers of prints to help identify prints from different fingers of the same person. The program used identified features (represented as maps in Figure 2B) that are different than the patterns the human eye detects and may have applications in lead generation in forensics and in authentication tools using biometrics in the future. For now, main author Guo recognized the limitations of the study—one of which is accuracy—that with accuracy ranging from 75% to 90% the system is not currently robust enough to be used as evidence in court. Insert your thoughts about this comment here, especially after reading Ulery’s 2011 study “Accuracy and reliability of forensic latent fingerprint decisions.” Ultimately, the authors are hopeful about potential applications to decrease the number of leads where fingerprints from different fingers of the same person are found at two crime scenes. A digestible video summary by the authors can be found on Columbia Engineering’s YouTube channel.

Hacked California Police Records Show How an AI-Generated Face Was Run Through Facial Recognition Tech to Generate Leads

Recently making headlines in Wired magazine, the East Bay Regional Park District Police Department in the San Francisco Bay Area violated Parabon NanoLabs’s terms of service by using facial recognition technology (FRT) on a virtual mugshot created by Parbon. Equally problematic was how the officer described the virtually created image to the facility that ran the FRT analysis: “‘I have a photo of the possible suspect and would like to use facial recognition technology to identify a suspect/lead.’” This 2020 incident was only uncovered recently when the department’s records were hacked and published by Distributed Denial of Secrets and it remains unclear whether this request was carried out.

For those uninitiated in the horrors of Parabon NanoLabs’ Snapshot® Phenotype Report, the lab uses portions of DNA (SNPs) different from those used in forensic genotyping (STRs) and transforms the data into an image of a human face via proprietary machine learning wizardry and genotype-and-phenotype datasets in all-too-typical black box fashion. Because of this proprietary tech and the nature of Parabon’s business, their methods remain unreviewed by peers. Their method predicts phenotypes (appearances of people) by utilizing portions of the DNA that encode information for skin color, eye color, hair color, face shape, and freckling. This technology previously made headlines in 2017 when the same police department published one of these images in hopes of getting a lead in a suspected murder case. The use of Parabon’s phenotyping tech was rightly criticized in 2020 for being used as “virtual mugshots” as published in The Daily News and Nature. However, law enforcement officials then and those interviewed for the 2024 Wired article are champing at the bit to exploit the latest digital technologies.

Wired author, Dhruv Mehrotra, summed this tactic up best by writing, “It emphasizes the ways that, without oversight, law enforcement is able to mix and match technologies in unintended ways, using untested algorithms to single out suspects based on unknowable criteria.” Another key takeaway came from NACDL Fourth Amendment Center attorney, Clare Garvie; stacking unreliable technology upon unreliable technology compounds the unreliability, error, and civil liberties violations. 

Association News

Nancy Farrell Named the New Director of the Veterans Defense Program

We are pleased to announce that Nancy Farrell has been appointed as the new Director of our Veterans Defense Program (VDP). Nancy has been with the VDP since June 2023. Before that, Nancy was the Schuyler County Public Defender and she has represented clients in criminal and family court as an Assistant Public Defender in Ontario County and as a family defender and supervisor at the Hiscock Legal Aid Society.

Gary Horton, the VDP’s Director for the first ten years of the program, is now Special Counsel for the VDP. We are grateful for Gary’s leadership over the past ten years, growing the VDP into a robust and successful program, as well as his ongoing commitment and dedication to the VDP and trauma-informed representation of veteran clients around the state.

Attorneys representing veterans and current members of the armed forces are encouraged to contact the VDP at VDPInfo@nysda.org or 585-219-4862. The VDP provides a range of services to defenders and their veteran clients, including collecting and interpreting military and related records, case consultations, veteran-specific mitigation, peer-to-peer mentoring, and service referrals.

NYSDA Testifies at Joint Legislative Budget Hearings

Last week, Executive Director Susan Bryant submitted written testimony and gave oral testimony before the Joint Legislative Budget Hearing on the Public Protection section of the budget. And on January 31st, Nancy Farrell, the VDP’s new director, submitted written testimony to the Joint Legislative Budget Hearing on the Human Services section of the budget. This year, NYSDA is advocating for restoration of funding for our Public Defense Backup Center and Veterans Defense Program, as well as additional funding to expand our Discovery and Forensic Support Unit and to bring the VDP’s services to Central and Northern New York. NYSDA also called on the Legislature to:

• include in the final budget a $50 million appropriation for family defense representation, funding that is desperately needed to reduce caseloads of family defenders around the state;
• reject the Governor’s proposal to sweep up to $234 million from the Indigent Legal Services Fund;
• increase Aid to Defense and defender discovery funding to match funding provided to the prosecution;
• properly fund the Indigent Parolee Representation Program;
• add funding for the expansion of the District Attorney and Indigent Legal Services Attorney Loan Forgiveness program, as set forth in a pending bill, S4511-B/A1568-C; and
• provide full state funding for the assigned counsel fee increase enacted in the 2023-2024 State Budget.

Latest Issue of the Public Defense Backup Center REPORT Now Online

The November-December 2023 issue of NYSDA’s newsletter, the Public Defense Backup Center REPORT, is available on the NYSDA website. NYSDA members will receive their hard copy of the issue when printing and mailing are completed. Have questions? Please contact the Backup Center at info@nysda.org or 518-465-3524.

Upcoming Training Programs

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 for this web training are available here.

Thursday, February 8, 2024, 2:00 – 3:30 pm: Digital Part I: Geofence Warrants, with John C. Ellis, Jr., Attorney at Law, The Law Offices of John C. Ellis, Jr. Details and registration information for this web training are available here.

Thursday, February 29, 2024, 2:00 – 4:00 pm: Digital Part II: Cell Site Location Information (“CSLI”) and Call Details Records (“CDR”), with Sidney Thaxter, Senior Litigator, Fourth Amendment Center, National Association of Criminal Defense Attorneys (NACDL). Details and registration information for this web training are available here.

Friday, March 8, 2024, 9:00 am – 5:00 pm: 38th Annual Metropolitan Trainer. The Metro Trainer will be held in-person this year at New York Law School. [Note: This is a new location for the Metropolitan Trainer. It will not be at NYU Law School this year.] The full-day training will include: Court of Appeals Update, presented by Timothy Murphy, Assistant Federal Public Defender, Western District of New York; Due Process and the Right to Challenge the Adequacy of Police Investigations in a Homicide Case, presented by Annie Costanzo and Tom Klein, Co-Directors, Homicide Practice Group, The Bronx Defenders; Critical Issues in Article 245 Discovery Practice, presented by Yung-Mi Lee, Legal Director, Criminal Defense Practice, Brooklyn Defender Services; The Basics of Working with Experts, presented by Emily Prokesch, Team Leader, Discovery and Forensic Support Unit, NYSDA; and Ethical Considerations in Working with Investigators, presented by Bruni Marrero and Peter Mitchell, Criminal Defense Practice, The Legal Aid Society. Note: this is a new location for the program. Details and registration information are available here.

Monday, March 11, 2024, 1:15 pm – 2:30 pm: Digital Part III: Litigating Against Algorithms, Hidden Technology, and the Machine Witness, with Christopher Lau, Assistant Clinical Professor (University of Wisconsin Law School) and co-director of the Wisconsin Innocence Project Clinic, and Maneka Sinha, Associate Professor of Law (University of Maryland, Francis King Carey School of Law). Registration for this web training is now open.

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. Anyone interested in applying should contact their defender program chief or NYSDA directly at training@nysda.org.

Save the Date:

Thursday, March 21 to Friday, March 22, 2024: VDP's Annual Veterans Treatment Court Convening will be held in Syracuse. There will be a reception on March 21st at 6:00 pm to celebrate the 10th anniversary of the VDP. The convening will be held the morning of March 22nd with a "Veterans Treatment Court: Strategies and Best Practices" CLE presentation in the afternoon. Location and hotel information will be available soon. Inquiries and registration for the convening can be sent to Dee Quinn Miller at dmiller@nysda.org. 

Sunday, July 21 to Tuesday, July 23, 2024: NYSDA’s 57th Annual Meeting and Conference will be held at the Saratoga Hilton and City Center. The Chief Defender Convening will be held on Sunday, July 21st. On Monday, we will have our Annual Meeting of the Membership in the morning before the training starts and the Awards Banquet will be Monday evening (see information below about nominations for the Kevin M. Andersen Award). Training sessions will be held during the day on Monday and Tuesday. Similar to last year, we will be offering both criminal and family defense tracks. Details and registration information will be available soon.

Hotel Reservations: Rooms at the Saratoga Hilton are available now for booking: https://book.passkey.com/go/NYSDA2024. The special room rate of $206 (for a standard room) is available through June 17th. We will be reserving a block of rooms at another local hotel soon.

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