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Use of Hearsay at Bail Hearing Under CPL 530.60 Improper, Court Says
A judge held recently, in People v Vincent (2024 NY Slip Op 24002 [Kings Co Supreme Ct 1/2/2024]), that hearsay is not admissible at a CPL 530.60 hearing where the defendant was out on bail for one offense and was rearrested and indicted on new drug charges. The prosecution submitted at the hearing only the new indictment and accompanying grand jury minutes and a laboratory report. That report had been entered into evidence at the grand jury and purported to show that a substance found during a search was cocaine. “This report was entered without a live witness pursuant to CPL § 190.30.” The admission of only one form of hearsay--grand jury testimony of a witness--is specified in CPL 530.60. As “the laboratory report does not fall within the exception and cannot be entered into evidence at the hearing without the proper foundation having been laid,” the decision said, “the court cannot find by clear and convincing evidence that a felony was committed and the People’s request for a modification of the securing order is denied.”
A discussion of hearsay at hearings under CPL 530.60 can be found in an earlier New York County case, People ex rel. Chiszar v Brann (69 Misc 3d 201 [6/12/2020]). Chiszar was cited in a decision, People v Fuhrtz (74 Misc 3d 831 [2/16/2022]), rejecting a 2020 Kings County trial court holding that an indictment alone was enough to sustain a revocation under CPL 530.60(2)(a).
Data Collaborative for Justice Issues Reports: Bail Reform in Town and Village Courts, Desk Appearance Ticket Reform
Data Collaborative for Justice and the Finn Institute recently released two reports, Evaluating Bail Reform in New York’s Justice Courts and Evaluating the Impacts of Desk Appearance Ticket Reform in Rural and Suburban New York, both of which are based on data from a sample of town and village courts. As noted in the conclusion of the bail report: “New York’s Justice Courts’ function in the background of the state’s legal system: They process large numbers of cases, but because they have not historically contributed to the Unified Court Systems’ standardized data collection, little is known about what they do, and how they adapt to reform. What is not recorded cannot be analyzed and publicized. Hence for the general public, many criminal justice researchers, and even many state policymakers, the Justice Courts fly under the radar that usually surveils criminal courts.”
Major findings in the bail report include: an expected increase in release without bail in misdemeanor and non-violent felony cases, while release rates in violent felony cases fluctuated from year to year without a clear directional pattern; similar to prior research on city and district courts, bail amounts are not more affordable and people are not more likely to post bail post-reform; and before and after reform, release rates in justice courts was slightly higher than in city courts.
The report on Desk Appearance Tickets (DATs) presents data on arrest trends for misdemeanors and class E felonies, the issuance of DATs, and “the ways in which counties’ adoption of counsel at first appearance programs (CAFA) and centralized arraignment parts (CAP) may have consequences for the implementation of DAT reform in misdemeanor arrests (or vice versa).”
DVSJA Decision Illuminates Multiple Factors in Application of Ameliorative Guidelines
In People v Brenda WW. (2023 Slip Op 113247 [3d Dept 12/21/2023]), the Appellate Division, Third Department reversed the hearing court’s denial of a resentence, granted the CPL 440.47 application, and ordered a sentence reduction under its interest of justice authority. The applicant had been convicted of the manslaughter of her intimate partner and sentenced in 2010 to an aggregate 20 years in prison followed by 5 years post-release supervision. She had served 15 years at the time the Third Department issued its decision. The applicant’s original defense at trial involved a justification defense within the battered spouse framework. The issues on prior direct appeals related to the availability of the justification defense in circumstances that did not reflect imminent harm at the time of the killing, although there was considerable credible evidence of a history of domestic violence and abuse inflicted by the decedent and others throughout the applicant’s life.
In a 3-2 decision, after an exceptionally close inspection of the entire record of the case, including the original trials and the 440.47 hearing, and upon review of all facts and applicable law, the Third Department concluded, “[t]he fact that defendant was not entitled to a justification defense does not disqualify her from the compassionate relief afforded by the DVSJA. Defendant is not a perfect victim in any respect, and her own violent conduct certainly makes this inquiry a close call. However, the record before us establishes by a preponderance of the evidence that defendant has been repeatedly victimized by various individuals over the course of her life, which, as we have already discussed, explains much of her conduct. Altogether, it is our view that the totality of circumstances presented specifically by this case warrants relief pursuant to the DVSJA and its goal of providing sentencing alternatives for victims of domestic violence.” (Internal citations omitted.)
Among the issues discussed in the lengthy decision, the court examined the goals of the DVSJA and its relationship to other concepts of criminal law and defense, the obligation and authority of the Appellate Division to undertake sui generis interest of justice review, the breadth of the analysis needed when considering the statutory factors of temporal nexus between the domestic violence and the significance of domestic violence on the applicant’s conduct, and the discretionary nature of determining what may constitute an unduly harsh sentence under the parameters of sentencing guidelines outside the DVSJA ameliorative provisions.
Nikki Addimando, DVSJA Litigant Released
This past week, Nikki Addimando was released from serving her sentence, which was covered in the Times Union and other media outlets as her case was followed closely by many DVSJA supporters. Her story is an inspiration for others who may seek DVSJA relief.
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.
Administrative Order Makes It Easier for Litigants to File Family Court Papers
Effective Jan 1, 2024, it will be a little easier for litigants to file papers in family court actions, as notarized signatures are no longer required for non-attorneys. Many family court forms have been updated to reflect a change in state law authorizing the filing of affirmations in civil proceedings. As noted in this summary of Administrative Order AO-394: “Chapter 559 of the Laws of 2023 provides that . . . affidavits submitted in civil cases need not be notarized, thus permitting affirmations to be used. As delineated in the statute, new language regarding perjury has been added to all attorney and non-attorney affirmation forms. While notarized affidavits may still be submitted, affirmations have been substituted for the uniform form affidavits.” New forms have been issued and are posted at https://ww2.nycourts.gov/forms/familycourt/index.shtml.
Family Defense Quality Improvement and Caseload Reduction Grants Announced
On January 3rd, the Office of Indigent Legal Services (ILS) announced the selection of eight applicants to receive a Third Family Defense (Child Welfare) Quality Improvement & Caseload Reduction Grant. The Request for Proposals for these grants was released on Sept. 12, 2023, as noted in News Picks on October 4th. Amounts to be distributed range from $500,000 to $750,000 over a three-year period. ILS noted that the awards are tentative, subject to procurement record approval by the State’s Comptroller. The following jurisdictions were selected: Allegany, Chemung, Livingston, Madison, Schuyler, Sullivan, and Washington counties, and New York City (NYC). This is the first family defense grant that NYC was eligible to apply for.
Community Perspectives on (Re)investment in the Wake of Less is More
A report based on a series of virtual town hall meetings reveals how community members across New York want to use cost savings from the Less Is More: Community Supervision Revocation Reform Act. Participants prioritized investments that would support people so they can thrive in their communities, including housing, behavioral healthcare; employment and vocational training; reentry supports; and community spaces that could serve as a hub for resources and activities. While acknowledging the difficulty of identifying with certainty what lowered costs are due to Less is More, the report notes, among other things, estimates of over 20,000 people earning early discharge through the 30 for 30 provision; a drop of 7,000 people on parole between fall 2021 and fall 2022 (along with reductions in the number of parole officers); and reductions in the number of people detained locally for technical parole violations as implementation proceeded. Data tables are included. The Columbia University Justice Lab Probation and Parole Project and Unchained partnered with the Less Is More Coalition (of which NYSDA is a member), led by Unchained and the Katal Center, on this qualitative study.
PPI Releases New Report on Community Supervision “Association Restrictions”
The Prison Policy Institute released a new report, “Guilty by association: When parole and probation rules disrupt support systems,” analyzing restrictions on who people on community supervision can “associate” with. The report argues that people grappling with re-entry need the support and help of people that have been through similar experiences, meaning that these association restrictions prohibit the exact support system that is so desperately needed. In conclusion, the report finds that “[t]he senselessness and cruelty of association restrictions undermine the very purpose of supervision, which includes helping people get the resources and build the relationships they need to achieve stability in the community.”
These restrictions are particularly onerous on New Yorkers under community supervision. While some states impose restrictions on contact with people with felony records, or criminal convictions, New York is one of only two states to prohibit contact with people with any criminal record at all. The DOCCS general conditions of community supervision include an individual under supervision to agree “I will not be in the company of or fraternize with any person I know to have a criminal record or whom I know to have been adjudicated a Youthful Offender except for accidental encounters in public places, work, school, or in any other instance without the permission of my Parole Officer.”
While 2022’s Less is More Act transformed the state’s parole violation system, DOCCS still employs numerous arbitrary and detrimental rules like these association restrictions. This issue could be addressed through state legislation.
Further Cautions on Law Enforcement and TSA Reliance on Facial Recognition Technologies
In October, the National Association of Criminal Defense Lawyers (NACDL) adopted a resolution opposing the use of facial recognition technologies (FRT) by law enforcement. In an emailed press release, the organization highlighted the “significant risk of racial, sexual, and age biases, leading to misidentifications and disproportionate impacts on certain communities.” Further, there is great concern for the lack of scientific validity of this surveillance method and the absence of standards and safeguards. Through the resolution, the NACDL called for full disclosures of details of the technologies employed and the contracts law enforcement agencies have with vendors and demanded that the government refrain from using this technology as evidence in court until Frye and Daubert standards have been met. The NACDL’s Fourth Amendment Center recently published a facial recognition technology primer, available here.
As summarized in a recent TechDirt article: on one hand, law enforcement agencies tend to assert they are exempt from disclosing their use of FRT since it is merely an investigative tool to generate leads; on the other hand, agencies may use only this technology during an investigation forsaking other investigative tools. Attorneys should be wary of this technology and its reliance on artificial intelligence (AI). The article continued, explaining that people who double check results generated by facial recognition AI obtain results that are “often no better than the software and hardware they’re asked to oversee, not just because they’re wrong about their own innate ability to recognize faces, but because they’re, for the most part, given little to no training before being asked to vet AI judgment calls.”
For additional information on the use of FRT and related technologies in New York City, see the May 2023 testimony of Elizabeth Daniel Vasquez, Brooklyn Defender Services’ Director of the Science and Surveillance Project, before the New York City Council Committees on Technology and Civil & Human Rights Oversight Hearing on the Use of Biometric Identification Systems.
In other news, facial recognition technology was banned from use in New York State schools in September while it was implemented by the TSA at the Albany and Syracuse airports—among others across the country—in attempts to match travelers’ faces with the photos on their identification documents. While travelers may opt out, signage alerting of this option may not be obvious as seen in this video at Washington National Airport. Federal legislation on this latter issue is pending.
New Reports on Contemporary Crime Reporting and Criminal Court Decision Availability
The Center for Just Journalism published Building a Better Beat: A New Approach to Public Safety Reporting, looking at how journalistic institutions report on crime. The report concludes that contemporary crime reporting gives “the inaccurate impression that public safety is inextricably linked with a small range of policy intervention found in the narrow world of police, prosecutors, and prisons, despite the wealth of evidence that those systems do not address the underlying causes of crime, are relatively ineffective at reducing violence and other types of harm and have enormous social and financial costs.” As both sides of the bail reform debate increasingly focus on the quantity and quality of the media’s coverage of the criminal legal system, the report’s assertion that “the public is ill-equipped to understand increases or decreases in index crime and unaware of many of the programs and policies proven to reduce these crimes and other types of harm” is particularly relevant and sobering.
Scrutinize and Reinvent Albany published Open Criminal Courts: New York Criminal Court Decisions Should be Public. The organization found that only 6% of all written criminal court decisions are published online every year, and that of those, 20 judges were responsible for over a quarter of all the available decisions. As the title suggests, the report advocates for new legislation requiring written decisions (or transcripts of oral decisions) to be made publicly available online. According to a Times Union article on the report, State Senate Deputy Majority Leader Michael Gianaris is considering introducing such a piece of legislation, arguing that “[t]he public has a right to know what’s going on in their courthouses.”
Public Defense Nationwide News
The right to counsel under the Sixth Amendment and state constitutional provisions, manifested in public defense, continues to face fiscal and other barriers. A report entitled Gideon at 60: A Snapshot of State Public Defense Systems and Paths to Reform, released in November, looks at how public defense services are provided across the nation. Researchers “find that 60 years on, whether Gideon has been fulfilled is, at best, an open question in most state and local criminal courts.” See the Executive Summary. New York’s efforts at public defense reform, including the Hurrell-Harring lawsuit and legislation, receive attention. NYSDA gets a mention. The report was developed for the National Institute of Justice and the Office for Access to Justice.
In this era of constricted readings of constitutional rights, there may be a reluctance to push for a broader right, as noted in “The Embarrassing Sixth Amendment,” published in the California Law Review. It posits “an obvious and persuasive text-based argument for expansion of the right to counsel to include all crimes,” attacking Scott v Illinois (440 US 367 [1979]). Scott held “that the Sixth and Fourteenth Amendments to the United States Constitution require only that no indigent criminal defendant be sentenced to a term of imprisonment unless the State has afforded him the right to assistance of appointed counsel in his defense."
Incarceration Issues in the News
A research article published in Health Affairs encompasses its subject in the title, “Jail Conditions And Mortality: Death Rates Associated With Turnover, Jail Size, And Population Characteristics.” The abstract concludes, “Our findings suggest that heavy reliance on incarceration and the prevalence of broad health disparities escalate jail mortality.” One of the co-authors points out in a November 13th article that “[j]ails are sometimes referred to as the ‘front door’ of the criminal justice system“ and that the study suggests that measures to reduce jail populations could save lives.
A National Resource Center for Correctional Oversight (NRCCO) made its debut in mid-November. Touted as a “groundbreaking national clearinghouse designed to significantly change the dialogue on prison oversight,” it intends to offer “research insights, state-specific data, interactive maps, detailed profiles of oversight bodies, background information, legislative developments, and news updates.” The Prison and Jail Innovation Lab (PJIL) at the Lyndon B. Johnson School of Public Affairs at The University of Texas introduced the new resource. “‘While this first phase of the website is primarily focused on oversight of state prisons, the next phase will be especially useful to those concerned about conditions in local jails,’” a PJIL spokesperson has said. NRCCO’s primary funder is Arnold Ventures.
A federal jury awarded $9.25 million to Tracy Yvonne Cooper, the mother of Terry L. Cooper, who was killed in Clinton Correctional Facility in 2016. “The suit alleged the officers used excessive force and failed to intervene to aid [Terry] Cooper, violating his civil rights under the Eighth Amendment, which prohibits cruel and unusual punishment,” according to reporting by the Times Union on November 16th. The plaintiff had requested $3.75 million.
988 Suicide and Crisis Lifeline Use Examined
A research letter published on the JAMA Network Open on October 31st discusses a study of “variations in use, potential use, and awareness of the 988 Lifeline among people with varying levels of psychological distress.” It found that “use and awareness of the 988 Lifeline was significantly higher among individuals with serious and moderate psychological distress.” The letter states “there is a need for more research about satisfaction with the 988 Lifeline among people with serious distress and the extent to which the 988 Lifeline, and the resources it connects users to, meets their needs.” A report on CNN.com about the study notes the critical need for a tool like 988 at a time that the nation is facing “a significant mental health crisis,” while noting the need for improvement in 988 services. “‘988 interactions should leave people with a sense of hope and resources that they can access and benefit from. Successful interactions with the lifeline would be culturally competent and handled locally,’” one expert said.
A November 14th opinion piece on USAToday.com said that while there was “a 46% increase in the number of calls answered in the first year … a recent survey found that just 13% of Americans know of both 988’s existence and the reasons why someone might contact 988.” Increasing awareness of 988 is important, the author noted, given the still-limited coordination between the standard emergency number – 911 – and emergency mental health care. This is especially true considering the reasonable, ongoing fear that calling 911, which may result in police rather than mental healthcare professionals, is not a safe option for those undergoing a behavioral health problem. NYSDA highlighted the 988 Suicide and Crisis in News Picks on July 28th, and earlier on Aug. 31, 2022, and in the June-October 2022 issue of the Backup Center REPORT.
Other ways that NYSDA has provided information on mental health and legal issues arising from mental illness in both criminal and family defense matters include the CLE training event presented in October on “Advocating for Parents Facing Allegations of Mental Illness in Article 10 Cases.” Another is the item about Mental Health First Aid for veterans that was included in the January-March 2023 issue of the REPORT at page 3.
Veterans Defense Program Practice Tip
To Be a Veteran Or Not To Be a Veteran
It is important to remember that not all veterans self-identify as a veteran, for many different reasons. It may be the veteran’s feeling that others did much more, like deploy to an active combat area or serve in the active military instead of the reserves. They may feel the accusations they now face make them unworthy of recognition as a veteran or it might somehow bring shame to the armed forces themselves. Regardless of their reasons, the fact that they sacrificed for this country means their military history could be a crucial mitigating factor to your representation in a criminal or family court matter. So be sure to look for clues that your client might not be forthcoming with their veteran status; ask the question in a way other than are you a veteran. Two questions that may work are: Did you serve in the military? Did you wear an armed forces uniform? It could make all the difference for your client’s case to know their veteran status.
If you have a client who is a veteran or a current member of the armed forces, we encourage you to contact NYSDA’s Veterans Defense Program (VDP). 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. Contact the VDP at VDPInfo@nysda.org or 585-219-4862.
Association News
Upcoming Training Programs
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.
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 available here.
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 available here.
Save the Date:
Friday, March 8, 2024, 9:00 am –5:00 pm: 38th Annual Metropolitan Trainer returning in-person to New York City. Details and registration information 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.
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.
NYSDA Seeks Nominations for Kevin M. Andersen Memorial Award
Since 2005, the Kevin M. Andersen Memorial Award has been presented at NYSDA’s Annual Awards Banquet. The award is named for Kevin Andersen, a public defender throughout his career. Those who worked with him knew Kevin to have the will to fight ferociously for his clients and the compassion to grant them the dignity they deserved. Sadly, Kevin’s career was cut short when he died from cancer in 2004 at the age of 49. This award is presented to an attorney who has been in practice less than fifteen years, who practices in public defense, and who exemplifies the sense of justice, determination, and compassion that were Kevin’s hallmarks.
We are reaching out to solicit nominations from the public defense community, including chief defenders, defender supervisors, and assigned counsel administrators and staff. The format for nominations is simple. Email a nomination letter with any supporting materials to NYSDA’s Executive Assistant Diane DuBois at ddubois@nysda.org. The deadline for nominations is June 3rd.
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