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Governor Proposes to Gut Discovery Reform; Alliance to Protect Kalief’s Law Pushes Back
Public defenders and advocates from across the state have recently banded together to save the critical discovery reform law CPL article 245 from the proposed gutting by Governor Hochul. The Alliance to Protect Kalief’s Law (Alliance) includes NYSDA, NYSACDL, Kalief’s brother Akeem Browder, many public defender offices, law schools, and the Families and Friends of the Wrongfully Convicted, to name a few. As a reminder, Kalief’s Law was enacted to honor the memory of Kalief Browder, a falsely accused 16-year-old Bronx native forced to languish in Rikers Island awaiting three years for a trial that never occurred. Upon release from Rikers and after suffering further trauma, Kalief tragically took his own life in 2015 at the age of 22. Kalief’s Law amended CPL § 30.30 to ensure an accused’s right to a speedy trial by establishing time frames and standards for trial readiness.
Members of the Alliance have spoken out against the proposed legislation in the media and continue to fight during legislative session. Several defenders, including The Legal Aid Society, NYSDA, NYSACDL, and CDANY, and other members of the Alliance testified at Thursday’s Public Protection joint legislative hearing against the proposal; written testimony and video of the hearing are available here.
Below are some highlighted publications and sound bites:
Cries of Outrage Sparked by Killing of Robert Brooks at Marcy Correctional Facility; Indictment Expected; Visits at Correctional Facilities Suspended
Robert Brooks was beaten by corrections officers in Marcy Correctional Facility in December, as revealed in body cam footage; he died on Dec. 10, 2024. NYSDA decries the killing of Mr. Brooks by prison employees, observed without action by others. This is the latest manifestation of the culture of publishment and cruelty, bred by systemic racisms, that infects our society’s criminal legal system; and body-worn camera footage makes it impossible for anyone to ignore.
Coverage of the death appeared on December 15th on TimesUnion.com, and grew. As more information about the beating was released, headlines and outrage increased. December rallies in New York City, Rochester, and Albany drew hundreds of people demanding change, while a Utica rally on January 11th drew people from around the state. State officials responded: the Governor announced a series of actions; the Commissioner of the Department of Correction and Community Supervision (DOCCS) promised "institutional change” and 17 DOCCS employees had been suspended by January 9th; and the State’s Attorney General opened an investigation but later recused her office because “four of the correction officers under investigation in the… matter are currently defendants in other matters and are being represented by lawyers” in the AG’s office.
Early in February, an attorney for the Brooks’ family revealed that his death was officially ruled a homicide in an autopsy report. Following the AG’s recusal, the investigation was reassigned to Onondaga County District Attorney William Fitzpatrick, and, on February 10th, a grand jury was convened to review the death. Last week, there were news reports about the issuance of a sealed indictment, and news this week reports that an indictment is scheduled to be unsealed in Oneida County Court on Thursday, February 20th.
Visits at Correctional Facilities Temporarily Halted; Corrections Officers Reportedly on Strike
On February 18th, DOCCS announced on social media that visitation was cancelled until further notice at Elmira, Attica, Auburn, and Five Points Correctional Facilities, and visitation was cancelled at Collins Correctional Facility on February 17th. NYSDA has heard reports that phone calls with people who are incarcerated has also been suspended in at least some locations. And several local news outlets are reporting that correctional officers have been striking at several facilities, including News10; WKBW Buffalo; WIBV; and the Times Union. DOCCS “said in a statement that the ‘job actions initiated by some rogue NYSCOPBA members’ are ‘illegal and unlawful.’”
Examination of Jail and Prison Conditions
Another important part of reaction to the graphic prison horror was the recognition that jails as well as state prisons should be scrutinized and changed to avoid further brutality. The Monroe County Sheriff was asked in a WHEC.com interview whether the situation had led him to take a look at his own facility; he said “Yes, absolutely….” He also said that while deputies there do not currently wear body cameras, that may change – and supervisors already have them. A Jamestown Post Journal writer reporting on a planned community conversation to address the beating quoted the Chautauqua County Sheriff as saying that “’[n]o human being should be treated that way by another human being’” (but went on to claim that “’many inmates are emboldened by recent state laws that ban virtually all inmate discipline, thus removing the most effective tools for managing prison and jail populations.’”)
Too much of the reporting and comments about the situation use the label “inmate” to refer to Robert Brooks and others brutalized by prison personnel. NYSDA continues to urge discontinuation of that term for all purposes. The dehumanization that accompanies use of such labels, which are inherently or have become pejorative, has a very real impact. See, for example, a 2021 study released by FWD.us, which found that use of labels such as “inmate,” “felon,” and “offender” in a media context biased readers against the people labeled and reduced support for reform.
The State Legislature is considering a variety of bills aimed at addressing conditions in state and local jails and ensuring the safety and rights of incarcerated people.
New York Grapples with Federal Gutting of Rights of Immigrants
As Donald Trump’s administration is waging an assault on the rights of immigrants, the Governor and the New York City Mayor have offered little opposition. Governor Hochul’s office suggested that the state would cooperate with Immigration and Customs Enforcement (ICE) officials, but was light on specifics about how the policy would interact with an “existing state executive order that limits collaboration between the state and federal immigration enforcement.”
Just last week, the Gothamist reported that Mayor Adams announced that he “is preparing an executive order to allow [ICE] officers to operate on Rikers Island.” The Daily News reported about responses to the announcement, including by Yasmine Farhang, Director of Advocacy at the Immigrant Defense Project: "'ICE had for years held court at Rikers, funneling thousands of New Yorkers into mass detention and deportation, tearing apart families and violating human rights,’ Farhang said. ‘We (now) have a mayor attempting to flout our laws by partnering up with this cruel federal administration.’”
Tensions between local laws, state executive orders, and new federal policies are flaring up across the state. Local jurisdictions that consider themselves sanctuary cities are particularly vulnerable, as seen in Tompkins County where ICE say country officials released a man despite there being a federal warrant for his arrest. Federal prosecutors announced they were “looking into the circumstances surrounding his release,” sparking fears of potential criminal prosecutions. Meanwhile, Nassau County announced they would cooperate extensively with federal authorities, including an ICE presence in local jails.
“The New York For All Act,” introduced in mid-January by 27 state Senators and 50 Assembly members, would remedy some of the harms by prohibiting state and local government employees from using any public resource for “immigration enforcement.”
As legislative proposals and litigation continue, NYSDA will provide updates via News Picks and our online resource pages - available for family court and criminal court. Now more than ever, it’s important for attorneys and clients to understand their rights and the rights of the people in their communities. The Immigrant Defense Project “Know Your Rights” flyer comes in various languages (English, Spanish, French, Portuguese, Tagalog, Haitian Creole, Hindi, Bangla, Punjabi, Arabic, Urdu, Simplified Mandarin, Traditional Mandarin, Korean, Russian and Hebrew) and the We Have Rights campaign has animated rights-based videos available in English, Spanish, Arabic, Mandarin, Russian, Haitian Creole, Urdu and French. We encourage you to share these materials widely and to contact your local Regional Immigration Assistance Center if you have questions related to your representation of someone who may not be a U.S. citizen.
Pending Court of Appeals Cases Noted in CAL Update
The Center for Appellate Litigation (CAL) has made the latest edition of its publication, Court of Appeals Newsletter, available to the public defense community. It lists significant criminal cases pending in the state’s highest court. Issues in cases awaiting decision include propriety of a persistent violent felony offender adjudication; the sufficiency of evidence of robbery and of burglary; and disclosure of law enforcement disciplinary records. Cases scheduled for argument offer issues relating to a knowing, voluntary, and intelligent guilty plea and waiver of the right to appeal; sex offender risk level adjudication proceedings; possible jurisdictional defects in accusatories charging aggravated unlicensed operation; propriety of a police pursuit; and a Molineux ruling allowing testimony about alleged prior acts of abuse against other complainants. Over twenty-five cases awaiting the scheduling of oral arguments are also noted, as are cases in which leave to appeal is newly granted. NYSDA appreciates CAL’s generous sharing of these updates, and other resources like Issues to Develop at Trial. See the CAL webpage For the Legal Community.
Prosecutorial Conduct Commission Accepting Complaints
The New York State Prosecutorial Conduct Commission is finally up and running. The Commission adopted Operating Rules and Procedures that went into effect on Dec. 18, 2024. A form for filing a complaint about a prosecutor’s conduct is now available on the website of the New York State Commission on Prosecutorial Conduct. Complaints can be filed online, or by mail using a form that can be printed.
The Commission has also proposed rules on the availability of records for public inspection and copying. As noted in last week’s edition of the State Register, public comments on the proposed rules will be accepted for 60 days; the deadline is April 13th.
Due Process Rights Violated in Family Court Case
In Matter of E.I. (2025 NY Slip Op 00022), the First Department rebuked a Bronx Family Court Judge who removed a child from their parents with no sound and substantial basis in the record to support such a harsh action. In a strongly worded reversal, the court wrote that the “Family Court violated the mother’s due process rights when, on the return date of the motion, it sua sponte removed the children without giving the mother notice or an opportunity to be heard and, at a later hearing, effectively imposed upon the mother the burden of showing that the removal was unwarranted.” [Citation omitted.] Particularly egregious is that this was a routine Family Court Act 1061 motion by ACS to extend supervision, and the agency was not seeking removal. Additionally, the appellate division stated, “A parent's due process ‘interest in the care, custody, and control of their children . . . [and] the children[s'] . . . parallel right to be reared by their parent’ continues even after a dispositional order in a Family Court article 10 proceeding.” [Citation omitted.] NYSDA congratulates The Bronx Defenders for their victory.
Non-Respondent Parents Cannot Be Supervised by CPS and the Courts
As reported in the New York Times, in a victory for victims of domestic violence, the Second Department in Matter of Sapphire W. (2025 NY Slip Op 00662) ruled that a family court may not place a non-respondent custodial parent under the supervision of child protective services and the courts when the abuser is living elsewhere and the child has not been removed. In its decision, the court stated “‘[The] Family Court is a court of limited jurisdiction that cannot exercise powers beyond those granted to it by statute’ [citations omitted]. Stated otherwise, the Family Court may not issue a directive or decide a particular issue ‘in the absence of any express grant of authority by statute’ [citations omitted]. Similarly, the Family Court's ‘general parens patriae responsibility to do what is in the best interests of the children . . . cannot create jurisdiction . . . not provided by statute’ [citation omitted].” This ruling does just apply to domestic violence victims; it applies to all non-respondent parents. NYSDA congratulates the Family Justice Law Center, as well as all the organizations that submitted amicus briefs.
NYSDA is hosting a free webinar about the decision on Thursday, March 27th from 1:00--2:00 pm. Practice note: Family defenders should be prepared to challenge neglect petitions brought against victims of domestic violence. Those with questions may contact our family court staff attorney Kim Bode, at kbode@nysda.org. Defenders are also encouraged to visit NYSDA’s motion bank for a sample motion to dismiss.
2024 Family Court Roundup Released
The New York Law Journal recently published a two-part “family court roundup” of noteworthy appellate cases from the past year, written by Cynthia Feathers from the Albany County Public Defender’s Office. Part 1 addresses decisions about attorneys for the children, bias, counsel for parents, defaults, and dissents. Part 2 addresses issues of neglect, stays, summary judgment, and the UCCJEA. Family defenders are encouraged to read the “roundup” in its entirety, both for the summaries and the helpful practice notes from Ms. Feathers that follow.
Family Justice Initiative Releases Preliminary Report and Recommendations
The Center for Justice Innovation has released a preliminary report and recommendations of the Family Justice Initiative (FJI). FJI, created by the New York State Unified Court System, the Center for Justice Innovation, and the Office of the Governor of the State of New York, “seeks to forge a fair, equitable, and sustainable path forward for the Court and its system partners to better serve New Yorkers. The Initiative is solutions-focused and prioritizes areas for improvement, identifies promising programs, and explores new ideas to strengthen families, reduce unnecessary system involvement, and break intergenerational cycles of trauma.” FJI’s recommendations include “investing in quality legal representation to promote an efficient and equitable system,” investing “in court and community-based services to increase efficiency, promote safety, and strengthen families,” and youth justice initiatives including creation of the Youth Justice Innovation Fund.
The first recommendation advocates that the State adopt the Office of Indigent Legal Services’ proposal to increase funding for attorneys representing parents in Family Court matters. Unfortunately, the Governor’s proposed budget did not accept the ILS proposal. NYSDA’s written budget testimony, discussed below, emphasized the clear need for significant state funding in this year’s budget.
Statewide Panel Formed to Examine Issues Confronting New York’s Family Justice System
The NYS Office of Court Administration issued a press release earlier this month stating, “With renewed focus on the crucial role of New York’s family justice system, Chief Judge Rowan D. Wilson, and Chief Administrative Judge Joseph A. Zayas today announced the formation of a landmark panel charged with forging collaborative study of the panoply of justice issues impacting families, youth, and children across the state.” Judge Zayas acknowledged: “Our family courts and justice system handle urgent matters involving deep-rooted, systemic issues. “We are striving to do better in responding to the essential needs of New York’s children and families in crisis.”
The panel consists of more than 50 individuals with diverse backgrounds and experiences with the family court system. The parent defense community is represented by a number of individuals, including Tehra Coles, Executive Director of the Center for Family Representation, Eileen Choi, Senior Supervising Attorney at Brooklyn Defender Services, Nicole Velazquez, Deputy Director at The Bronx Defenders, and Professor Martin Guggenheim, among others. The full roster is available here.
New Forensic DNA Resources Linked on NYSDA’s Website
Our Forensics Resources webpage serves as a hub, offering essential resources to guide your practice. Whether you're navigating forensic evidence, understanding discovery laws, or searching for experts, our website provides guides, documents, and publications to support your work.
This hub covers critical topics in forensic science, including DNA analysis, firearms, toxicology, and digital evidence. Be sure to check back often for updated guidelines, and fresh publications that will help keep you informed and prepared. Note: to the extent that certain federal publications and resources may be made inaccessible through regular government websites, we plan to archive them to ensure uninterrupted defense access.
Key Resources
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Expert Witness Assistance: If you need an expert witness, our team can help you connect with experts on a variety of forensic topics. Contact us at forensics@nysda.org.
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Expert Funding: For offices without set-aside funding, we provide a guide for obtaining the funds you need under County Law 722-c (note: NYSDA will be releasing an updated version of this guide shortly).
- Publications & Resources: Examples include the NRC’s Reference Manual on Scientific Evidence and the PCAST Report on Forensic Science.
Notable New 2024 DNA Resources
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NIST DNA Mixture Interpretation: Offers key insights into analyzing complex DNA mixtures, including best practices for evaluating multiple contributor profiles and applying appropriate statistical methods. (NIST Scientific Foundation Review (National Institute of Standards and Technology, December 2024)
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NIST History of DNA Mixture Interpretation: Provides a comprehensive overview of the development and evolution of DNA mixture interpretation techniques, emphasizing their scientific foundations, limitations, and relevance in court admissibility hearings. (NIST Scientific Foundation Review (National Institute of Standards and Technology, December 2024)
Specialized Support from Our Team
In addition to these valuable resources, our Discovery and Forensic Support Unit is here to assist you with support on your case. Whether you need help interpreting specific evidence, seeking expert witnesses, or strategizing your defense, we offer guidance to ensure you have the necessary tools for a successful defense. If you have any questions or require support, please don’t hesitate to reach out to us at forensics@nysda.org.
NYC OCME Provides Updates to Its Ongoing Investigation of DNA Contamination
Following up on its Root Cause Analysis, the NYC Office of Chief Medical Examiner (OCME) provided an update to its ongoing internal investigation into last year’s DNA contamination events. The purpose of ongoing review is to determine whether case-to-case contamination occurred prior to when it was first caught last summer. The totals as of Jan. 3, 2025, were: 31 affected samples, 25 affected cases, 9 implicated criminalists. The lab is continuing its retrospective review of samples examined in March and April 2024 and expects its analysis to be completed by March 2025, but the OCME claims it will reassess whether additional work needs to be completed at that time. The OCME sent the memo to City DA’s offices, institutional providers and the First and Second Department’s Assigned Counsel Plans, Deputy Chief Administrative Judge Hon. Adam Silvera, and NYC law enforcement. The memo shared did little more than memorialize the findings shared with members of the public defense community in a private meeting in December, where a NYSDA staff member was in attendance. For more information, see our coverage from December 31, 2024 and December 10, 2024 News Picks from NYSDA Staff.
NYSDA’s 39th Metropolitan Trainer on Friday, March 14th, will include a presentation about DNA Laboratory Contamination by Paul Beyder and Martha Saunders, Staff Attorneys with The Legal Aid Society’s DNA Unit. Registration for the all-day, in-person training program is open until February 26th.
Association News
We’ve Moved Our Albany Office!
As of January 15, 2025, NYSDA’s main office is located at 40 Beaver Street, 4th Floor, Albany, NY 12207. All other contact information has remained the same.
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 February 12th, VDP Director Nancy Farrell 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 add a Director of Training and an additional PDCMS position to our Public Defense Backup Center. Among other things, NYSDA also called on the Legislature to:
- include a $50 million appropriation for family defense representation in the final budget;
- reject the Governor’s proposal to sweep up to $234 million from the Indigent Legal Services Fund;
- add a COLA increase for the distribution funding to counties and NYC from the ILS Office;
- 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, S161; and
- intentionally omit the Governor’s proposed rollback to discovery reform (as discussed above).
Upcoming Webinars and In-Person Training Programs
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Friday, February 28, 2025, 1:30 – 3:30 pm, Discovery from the Defense: Ethics and Key Questions (free webinar). For more information and to register click here. Please note that this is a showing of a recorded webinar from November 15, 2024, with a live Q&A with John Schoeffel. Previous attendees are welcome to participate again, but duplicate CLE certificates will not be issued.
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Thursday, March 6, 2025, 1:00 – 2:30 pm, Family Court Case Law Update (free webinar). For more information and to register, click here.
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Friday, March 14, 2025, 39th Metropolitan Trainer. This all-day in-person training will be held at The Legal Aid Society Training and Advocacy Center, 55 Water Street, 36th Floor, New York, NY. Spots are limited and pre-registration is required; deadline: February 26, 2025. Registration fee: $125/person or $100/person for offices registering 5 or more. For more information and to register, click here.
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Wednesday, March 19, 2025, 1:00 – 2:30 pm, Should My Client Testify? Negative Inferences & Other Considerations in Abuse & Neglect Cases. For more information and to register, click here.
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Thursday, March 27, 2025, 1:00 – 2:00 pm, Understanding Sapphire W. and Its Impact on Respondent and Non-Respondent Parents (free webinar). For more information and to register, click here.
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Wednesday, April 2, 2025, 2:00– 3:30 pm, Challenging Software- and AI-Generated Evidence (free webinar). For more information and to register, click here.
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Thursday, April 3, 2025, 12:30– 1:45 pm, Protecting the Rights of Non-Citizens in Family Court (free webinar). For more information and to register, click here.
SAVE THE DATE: NYSDA’s 58th Annual Meeting & Conference will be held at the Saratoga City Center and Saratoga Hilton located in Saratoga Springs from July 27 to 29, 2025. The conference will again feature training for criminal and family defenders and defense team members and various networking opportunities. Program registration will be available later in the Spring.
Hotel Reservations: Rooms at the Saratoga Hilton are available now for booking: https://book.passkey.com/go/NYSDefenders2025. The special room rate of $212 (for a standard room) is available through June 27th.
Don’t forget to check our Training Calendar to see the list of NYSDA’s upcoming programs.
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