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EDNY Suppresses Firearm in Important Post-Bruen Decision
Eastern District New York Judge Garaufis suppressed a firearm seized during an arrest where the NYPD did not know whether the defendant had a license to possess it before making the arrest. In light of the Supreme Court’s Bruen decision and New York’s subsequent amendment of Penal Law 400.00(2)(f), requiring that “licensing officers ‘shall’ issue a license to any person,’” the court held that police “can no longer reasonably assess whether a person was committing a [firearms] crime without taking the [licensing] exception into account.”
The court went on to rule that because NYPD officers skipped potential intermediate steps -- like conducting a Terry stop and then conducting a license check before making a probable cause determination to arrest -- the firearm had to be suppressed under the Fourth Amendment. The decision is particularly noteworthy since the court did not dispute the government’s assertions that the defendant was suspected of gang activity, in a “high crime” area, and that officers observed him placing the firearm in his pants pocket. United States v Homer, 23-CR-00086, 2024 WL 417103 (EDNY 2/5/2024).
Bay Decision, Discovery, and 30.30 Discussed
A discussion by Barry Kamins about People v Bay (2023 NY Slip Op 06407 [12/14/2023]) appeared in the February 5th issue of the New York Law Journal online. Kamins summarized the decision (which had been noted in the Dec. 18, 2023, edition of News Picks). He closed with the observation that Bay made clear that the Court of Appeals upheld the Legislature’s “intent to link trial readiness with discovery compliance.” In the article, Kamins listed a number of lower court decisions from New York City applying the Bay due diligence test to find that prosecutors failed to file proper certificates of compliance regarding their discovery disclosures. He also pointed out issues unresolved by Bay, such as prosecutors making unilateral decisions that certain discovery material is “‘irrelevant’ or ‘not discoverable.’” Neither, he pointed out, did Bay address cases in which the prosecution knew that some discoverable material had not been disclosed but nonetheless certified compliance without disclosing it. For this he mentioned the Queens County case of People v Marte (2023 Slip Op 23404 [12/20/2023]), decided shortly after Bay and highlighted in the Nov.-Dec. 2023 issue of the REPORT. Just days before Kamins’ article appeared, a Queens Criminal Court judge cited Marte in a decision that began: “This case illustrates a simple rule: a prosecutor cannot certify that she “has disclosed ... all known material” when she knows that she has not yet disclosed all known material.” People v Henry, 2024 NY Slip Op 24025 (1/29/2024).
A Reminder About the Right to Counsel in Family Court Act Article 6 Custody Cases
The Second Department recently reminded us that Family Court Act article 6 provides a right to counsel for all respondents, not just parents. In Matter of Huasco v Chimborazo (2024 NY Slip Op 00767 [2/14/2024]), the Rockland County Family Court had incorrectly advised the respondent-uncle that he did not have the statutory right to the assignment of counsel. The appellate division stated, “[a] respondent in any proceeding under article 6 of the Family Court Act has a statutory right to the assistance of counsel (see id. § 262[a][iii]).” A respondent may only waive the right to counsel if the waiver is knowing, voluntary, and intelligent. “The deprivation of a party’s fundamental right to counsel in a custody or visitation proceeding requires reversal, without regard to the merits of the unrepresented party’s position.” [Citation omitted.]
St. Lawrence County Case Illustrates Family Regulatory System Failings
The Times Union has been reporting on a neglect case in St. Lawrence Family Court that is an example of the family regulatory system gone awry. In that case, the court removed a baby from his parents and the child was placed with a St. Lawrence County CPS worker who is also a certified foster parent. Despite having a grandmother in Tennessee who sought custody, which the child’s parents fully supported, the child is still with the CPS caseworker three years later. Following the initial placement, procedural delays and “missteps” accrued, the Times Union reported. The article noted that in New York State, CPS programs operate “under a decentralized, county-by-county system, allowing each CPS department to run individually with some oversight by the state Office of Children and Family Services” that “may leave the door open for potential problems, especially in counties like St. Lawrence County, with smaller employee pools and more room for ethical breaches.” The grandmother’s complaint to the Office of Court Administration yielded “a letter profusely apologizing for the delay.”
According to the latest TU article, the grandmother recently lost her custody battle, with the judge noting a strong parent-child relationship between the child and foster family, with little mention of the procedural history, including the fact that five different judges have presided over this case.
Sadly, these circumstances are far from unique in the family regulatory system, and it warrants a practice note. Parent attorneys should be mindful that upon removal, Family Court Act 1017 requires the court to determine whether the child has a non-respondent parent or relatives and whether the child may appropriately reside with them. Far too often relatives are not considered as resources, over the parents’ objection, and in violation of the law. It is good practice for parent attorneys to routinely consider taking affirmative steps to ensure that FCA 1017 is followed. This may include filing a motion for the children to be placed with relatives. Kinship Navigator is a useful resource for information on the rights of grandparents and other relatives in these situations. And parent attorneys are encouraged to reach out to NYSDA’s Family Court Staff Attorney Kim Bode, kbode@nysda.org, for assistance with this and other family defense issues.
Westchester County Receives ILS Grant to Continue its Upstate Model Family Representation Office
The New York State Indigent Legal Services Office awarded Westchester County a three-year grant to continue operating its model family representation office, which is housed at Legal Services of Hudson Valley, a civil legal services organization. In her email announcement, ILS Director Patricia Warth stated, "We are confident that with this funding, Westchester County will fulfill the defining feature of the RFP to provide representation that is client-centered, holistic, and interdisciplinary and that addresses the legal and social service issues confronting parents affected by the child welfare system at all critical stages of their interaction with the system.” Westchester County was awarded the First Upstate Model Office Representation Grant in 2020 (as reported in the Feb. 12, 2020 edition of News Picks). Further information about the grant can be found in the RFP on the ILS website.
NYCLU Sues SCOC Over FOIL Denial
On February 2nd, the New York Civil Liberties Union (NYCLU) filed a lawsuit against the State Commission of Correction (SCOC) seeking records about the SCOC’s investigations into complaints of physical and sexual assaults in county jails. The suit, which seeks to overturn the SCOC’s denial of a Freedom of Information Law (FOIL) request, was reported in the Albany Times Union on February 11th. Information about the CPLR Article 78 lawsuit can be found in a press release on the NYCLU website. Recent news from the North Country underscores the need for close examination of assaults on people incarcerated in jails; a Times Union article focusing on allegations of sexual harassment and discrimination against female corrections officers at the Clinton County jail noted that “at least two former female inmates also have said they were sexually abused by male employees.” Whether an ongoing investigation by the Attorney General’s office will include these allegations is unclear, the article said.
The NYCLU’s suit against the SCOC was highlighted in a February 3rd post on the Justice and Unity for the Southern Tier (JUST) blog. The post noted that jails justice activists have long pointed out the SCOC’s failures and non-transparency. The April 17, 2023, edition of News Picks noted how SCOC secretiveness “trickles down” to the local level, citing issues at Rikers Island: “SCOC oversight has been used by the NYC Department of Correction (DOC) to limit access to some information by the DOC’s local oversight body, the Board of Correction (BOC).”
Judicial Ethics Opinion: Campaign Pledges on Crime Disqualify Judge from Criminal Cases
A judicial candidate promised during the campaign to, among other things, “(1) keep drug dealers off our streets and out of our hotels; (2) incarcerate offenders and protect victims of domestic violence; and (3) assure repeat offenders are sentenced to the full extent of the law.” The Advisory Committee on Judicial Ethics received an inquiry thereafter asking “if these campaign promises will require disqualification under Section 100.3(E)(1)(f).” The Committee noted that the pledges, in written campaign materials, “were made in the context of the candidate’s law enforcement and/or prosecutorial background.” It added, “[i]n our view, the inquirer’s campaign promises, seen as a whole, create a distinct impression that he/she would, if elected, aid law enforcement rather than apply the law neutrally and impartially.” [Citation omitted.] Therefore, in the Committee’s view, “the inquiring judge is disqualified during his/her entire judicial term from: (1) all criminal cases; (2) cases in any court involving allegations of domestic violence; (3) all Vehicle and Traffic Law matters; and (4) cases in any court involving purported drug dealers.” Opinion 23-158 was issued on Dec. 14, 2023. Defenders should keep a careful eye on the campaign literature of judges in their jurisdiction.
MHANYS Presents Mental Health Innovators: Celebrating Black Voices
The Mental Health Association of New York State (MHANYS) has highlighted, during Black History Month, Black history and its impact on mental health. See their webpage recognizing some pioneers “in how we approach and perceive mental health.” Mental Health Innovators: Celebrating Black Voices includes links to videos about Francis Sumner and Joy Harden Bradford. In a somewhat similar vein, the federal Department of Health and Human Services, with the Office of Minority Health, announced it was “celebrating Black History Month by acknowledging the role Black and African Americans have historically played in enhancing the health and well-being of all Americans and highlighting health equity promoting policies, programs, and practices focused on addressing the health disparities that affect this population.” The arts theme of this year’s celebration was tied in: “The arts can play an important role in improving health outcomes at the individual and community level. Arts-based strategies can contribute to greater social cohesion, cultural connection, health equity, and community well-being.”
Other Black History Month information and observances online include these two very different sources. The National Museum of African American History & Culture offered a Black History Month Digital Toolkit: Art as a Platform for Social Justice. And the Washington State Department of Corrections issued a news release that included this statement: “African American artists have also been at the forefront of numerous artistic movements, often merging their cultural heritage with contemporary expressions to create new artistic forms. … Art in prisons has also been recognized for its importance in cultural and educational programs in rehabilitation and reentry.”
NYSDA takes this opportunity to reaffirm its statement, Black Lives Matter to the New York State Defenders Association.
Leda Health’s Unproven At-Home Sexual Assault Evidence Kits Continue to Draw Criticism
Making headlines again is Leda Health’s at-home sexual assault evidence collection kits. Company founder and sexual assault survivor, Madison Campbell, is currently marketing her product to sororities and the military per a recent Pittsburgh Post-Gazette article.
First promoted in 2019, these evidence collection kits have since been the subject of many cease-and-desist letters, including from New York Attorney General Letitia James. For context, the 2019 AG’s letter alleged that the “MeToo Kits” (as they were called in 2019, pre-brandwashing) are part of “deceptive, fraudulent or illegal business practices” of Leda Health, who markets them as a key component in a “pathway[] to justice.” The letter went on to highlight the importance of proper maintenance of this potential evidence and the voluntariness of filing a police report, citing Executive Law 631(13) and Public Health Law 2805-i.
These kits have not yet been introduced in court and it appears enough medical and legal professionals recognize the problematic nature of at-home kits from an evidentiary standpoint, among a host of other concerns for individuals making allegations of sexual assault. However, that has not stopped Leda Health from marketing their products directly in states where they have not received C&D letters. Current clients include the Kappa Delta sorority at the University of Washington and the U.S. Air Force. The latter provided Leda Health with over $180,000 to study the usefulness of the kits for active duty members and “to promote sexual assault education and support for survivors.”
Senators Urge the DOJ to Halt Funding for Predictive Policing Systems
Following up on a delayed and unsatisfactory response to a 2021 letter to the Department of Justice (DOJ) requesting more transparency on spending on predictive policing systems, U.S. Senator Ron Wyden was joined by several other Senators in a new letter, urging the DOJ to cease grants for these systems. TechDirt reported that in response to the initial 2021 letter, the DOJ admitted that it could not account for how much money it actually gave to enforcement agencies for these systems. Since around 2009, the DOJ has been giving funds to predictive policing efforts with little to no transparency. Senator Wyden succinctly summarized that, “[m]ounting evidence indicates that predictive policing technologies do not reduce crime. Instead, they worsen the unequal treatment of Americans of color by law enforcement.” He further explained that “[t]he continued use of such systems creates a dangerous feedback loop: biased predictions are used to justify disproportionate stops and arrests in minority neighborhoods, which further biases statistics on where crimes are happening.”
Association News
Upcoming Webinar Training Programs
Friday, March 1, 2024, 12:30 – 2:00 pm: Family Defender Article 10 Lunchtime Series: Team Building for Client-Centered Representation, with Maggie Carrasquillo, Training Director, Social Work Practice, The Bronx Defenders; Sidni Rouse, Associate Training Director, Family Defense Practice, The Bronx Defenders; Leila Tabaa, Training Director, Family Defense Practice, The Bronx Defenders. Registration for this web training is open.
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 available here.
Wednesday, March 13, 2024, 1:00 – 2:30 pm: Family Defender Article 10 Lunchtime Series: Timely Representation and Pre-Petition Advocacy, with Michelle Bowen, Social Worker, Family Defense Practice, Brooklyn Defender Services, and Robert Turner, Special Assistant Public Defender, Family Defense Unit, Monroe County Public Defender’s Office. To register for this web training, click here.
Thursday, March 21, 2024, 12:30 – 2:00 pm: Family Defender Article 10 Lunchtime Series: Finding a Theory and Planning a Path Forward, with Yvonne Vertlieb, Deputy Administrator, Family Court Division, Erie County Assigned Counsel Program. Registration for this web training is open.
Tuesday, March 26, 2024, 12:30 – 2:00 pm: What Defenders Need to Know About the Clean Slate Act, with Emma Goodman, Staff Attorney, Criminal Defense Practice, The Legal Aid Society, and Kate Wagner-Goldstein, Esq., Independent Consultant and prior Director of New York Reentry Initiatives for the Legal Action Center. Details and registration information will be available soon.
Thursday, April 11, 2024, 2:00 – 3:30 pm: Pattern Matching Part II: Latent Prints, with Kevann Gardner, Supervising Attorney at the Public Defender Service for the District of Columbia and Senior Member of the Forensic Practice Group, and Sylvia Smith, Supervising Attorney for the Public Defender Service for the District of Columbia. Register here.
Thursday, April 18, 2024, 12:30 – 2:00 pm: Family Defender Article 10 Lunchtime Series: Effective Discovery and Motion Practice in Article 10 Cases, with Philip Katz, Partner, Fink & Katz, PLLC, and Lawrence Moore, Family Court Bureau Chief, Dutchess County Public Defender’s Office. Registration for this web training is open.
Upcoming In-Person Training Programs
Thursday, March 21 – Friday, March 22, 2024: VDP Annual Veterans Treatment Court Convening will be held in Syracuse at the Sheraton Syracuse University Hotel. There will be a reception on March 21st at 6:00 pm to celebrate the 10th anniversary of our Veterans Defense Program. Judge Russell, the founder of Veterans Treatment Courts, will join us for the reception and beginning portion of the convening. The convening will be held the morning of March 22nd with a “Veterans Treatment Court: Strategies and Best Practices” CLE presentation in the afternoon. There is no cost for the reception, convening, or CLE. For questions or to register, contact Dee Quinn Miller at dmiller@nysda.org.
Thursday, April 25 – Friday, April 26, 2024: Advanced Roadside Impaired Driving Enforcement (ARIDE) Instruction Course with Jonathan D. Cohn, Partner, Gerstenzang, Sills, Cohn & Gerstenzang, and John R. Sandle, Owner & Chief Investigator, Sand Investigations. This NHTSA comparable two-day (16.5 credit hour) program will be held in Albany. Please note: prior participation in a comparable basic NHTSA Standardized Field Sobriety Test (SFST) program is a prerequisite to participation in this program. Details and registration information for this training are available here.
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:
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. 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.
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