Summer 2023 DuBrin CPL 30.30 Manual Available

The Summer 2023 Edition of “Criminal Procedure Law Section 30.30(1) Manual” by Drew R. DuBrin of the Monroe County Public Defender’s Office is now available on NYSDA’s Criminal Defense Resources webpage. Many thanks to Drew and the Monroe County Public Defender’s Office for this excellent resource.

Discovery Case Law Spotlight: People v Hacamet

In Hacamet, 2023 NY Slip Op 23130 (Crim Court, Queens Co [5/2/2023]), the court considered the discovery of impeachment materials under CPL article 245. Taking the legislation as its starting point, the court noted that article 245 requires the discovery of all impeachment materials (245.20(1)(k)(iv)). In addition, it mandates that the information must be disclosed whether or not such information is recorded in tangible form and irrespective of whether the prosecutor credits the information.

In this case, the complainant had four criminal convictions, all of which arose from arrests by the NYPD. The prosecution disclosed the complainant’s convictions, the charges to which she pled, the dates of conviction, and the sentences. The prosecution did not disclose the docket numbers of the cases or any other information. The defense emailed the prosecution noting that the prosecution did not supply any identifying information for the convictions (e.g., docket numbers) and did not provide other materials including police reports and complaints. The defense noted that this meant they had no way to conduct an independent investigation or get certified copies of the judgments. Some months later, the prosecution supplied docket numbers for the cases, but did not provide the underlying police materials.

The court held that “if the People actually or constructively possess material relating to a testifying witness’s criminal convictions, they must produce all of it under C.P.L. § 245.20[1][k][iv].” The complainant’s convictions were in Manhattan, and the NYPD possessed the underlying materials relating to them. The court found that the prosecution did not exercise any efforts (let alone due diligence or reasonable inquiries) to obtain the information. The COC was therefore not filed in good faith, rendering the prosecution’s statement of readiness illusory. The defendant’s motion to dismiss on speedy trial grounds was granted.

For more information about discovery reform and case law interpreting CPL article 245, please visit the Discovery page on NYSDA’s website. Defenders with questions about discovery issues are encouraged to contact the Public Defense Backup Center’s Discovery and Forensic Support Unit at info@nysda.org, 518-465-3524, or using our contact form. 

Stop for Walking in the Roadway Requires Showing that No Safe Sidewalk Was Available

The Fourth Department held that evidence seized from a defendant stopped for walking in the roadway should have been suppressed where there was no showing that a sidewalk was available and could be used safely as required by Vehicle and Traffic Law 1156(a). Even if the presence of a sidewalk could be inferred from police testimony at the hearing that the stop was based on the defendant “walking down the center of the road,” there was no showing that any such sidewalk “could ‘be used with safety’ … especially when considering that defendant was stopped in January in central New York.” The facts set out in the decision include that the stop occurred after the defendant left his brother’s residence as police were preparing to execute a search warrant, and the SWAT team nearby “was directed to take defendant into custody pursuant to the warrant.” People v Montgomery, 2023 NY Slip Op 03606 (6/30/2023).

Many will remember that in 2014 the Ferguson, MO, police initially confronted Michael Brown, whom they eventually shot, as he was walking in the street and they demanded he move to the sidewalk. See “This Day in History: August 9, 2014” at https://www.history.com/this-day-in-history/michael-brown-killed-by-police-ferguson-mo. The use of jaywalking as an excuse for the police to stop someone is mentioned in the materials from NYSDA’s April 27th CLE training on Pretext Stops.

The Law of Litigating Family Court Relocation Cases

In the Matter of Amber GG. v Eric HH., 2023 NY Slip Op 03059 (6/8/2023), the Third Department gave a valuable tutorial on FCA article 6 custody relocation petitions. The court reversed the Broome County Family Court’s denial of the mother’s relocation petition and authorized her to move with the two children to Florida against the wishes of the father. In doing so the court noted that, given the totality of the circumstances, “the mother is, by far, the more involved parent and the primary caregiver, that the lives of the mother and the children would be enhanced by the relocation to Florida, that the children want to make that move, and that the mother is willing to facilitate significant visitation between the children and the father if it occurs.” In its decision, the Appellate Division listed some of the pertinent factors to be considered in a best interests relocation analysis, as delineated in the seminal Court of Appeals case Matter of Tropea v Tropea, 87 NY2d 727 (1996): 1) “each parent’s reasons for seeking or opposing the move”; 2) “the quality of the relationships between the child[ren] and the custodial and noncustodial parents”; 3) “the impact of the move on the quantity and quality of the child[ren]’s future contact with the noncustodial parent”; 4) “the degree to which the custodial parent’s and child[ren]’s [lives] may be enhanced economically, emotionally and educationally by the move”; 5) and “the feasibility of preserving the relationship between the noncustodial parent and child[ren] through suitable visitation arrangements ….”

Attorneys with questions related to Article 6 custody and visitation proceedings, should feel free to contact NYSDA’s Family Court Staff Attorney, Kim Bode, at kbode@nysda.org.

Appellate Division Holds Right to Effective Assistance of Counsel in DVSJA 440.47 Proceedings

In a summary memorandum decision, People v Susan C. (2023 NY Slip Op 03643 [4th Dept 6/30/2023]), the Fourth Department held that, while the appellant’s rights were not violated in the case at bar, applicants for resentencing under CPL 440.47, the Domestic Violence Survivors Justice Act (DVSJA), do have a right to the effective assistance of counsel in the proceedings.

Attorneys are reminded that information and resources are available on NYSDA’s DVSJA Resources webpage; and anyone 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.

Resources on Immigration Issues for Defenders

A Practice Advisory for Criminal Defense Attorneys from the Immigrant Defense Project (IDP), Immigrant Legal Resource Center, and National Immigration Project of the National Lawyers Guild, has taken on new life as a result of the U.S. Supreme Court decision in United States v Texas, No. 22-58 (6/23/2023). That opinion found that states cannot challenge the federal administration’s enforcement priorities guiding immigration arrests and deportation. While the decision does not automatically reinstate the government’s memo at issue in the case, IDP’s Padilla Support Center (a Regional Immigration Assistance Center [RIAC]) notes that reinstatement “seems likely.” IDP has shared with NYSDA the updated advisory, “The Biden Administration’s Final Enforcement Priorities,” which “highlights criminal defense implications and strategies for representing immigrant clients facing criminal charges” in anticipation of the memo’s implementation. On behalf of all defenders and their immigrant clients, NYSDA thanks IDP and its partners for this resource.

The Western New York RIAC has issued its July newsletter. It includes an article about the effect, if any, of refugee and asylum status for citizens of other countries facing criminal charges. The issue also discusses a new U.S. Supreme Court case, Pugin v Garland, No. 22-23 (6/22/2023), and mentions the U.S. v Texas case above, along with a Second Circuit case on what constitutes a “crime involving moral turpitude.” Free CLE training is also noted. NYSDA thanks WNY RIAC for sharing its publication.

Court System Introduces New Dashboard Tracking Basic Information Within Extreme Risk Protection Orders

The State Unified Court System issued a press release on June 14th to announce its Extreme Risk Protection Order (ERPO) Dashboard. The landing page contains an explanatory slide show with tips on how to use the new tool. Scrolling through the slides allows users to interact with the data to visualize graphed trends and geographical breakdowns by region or county. Data includes: the number of ERPO applications filed; the age and gender of the respondent; and the issuance and expiration dates. 

For additional information about ERPO treatment across the state, see NYSDA’s News Picks from April 27 (Albany County), April 17 (Orange County), and January 24 (Monroe and Westchester Counties).

Claim That Assigned Counsel Accepted Money from Family Warranted Inquiry

The Fourth Department held that where the client of an assigned counsel lawyer wrote the court that counsel was being paid by his family, “the court violated defendant’s right to counsel by failing to make a minimal inquiry concerning his serious complaint ….” People v Jackson, 2023 NY Slip Op 03609 (6/30/2023). The court noted that the complaint involved “unethical and illegal conduct (see generally County Law § 722-b [4]).” That provision reads: “[n]o counsel assigned hereunder shall seek or accept any fee for representing the party for whom he or she is assigned without approval of the court as herein provided.” The Assigned Counsel Program Standards of the Indigent Legal Services Office reinforce this provision, noting that noncompliance “is a ground for removal from the panel.” Standard 8.3.c. Commentary to that standard cites three Appellate Division rules on the issue, including the Fourth Department’s Rule 1015.9(a) at 22 NYCRR Part 1015.

New Jersey Eliminates Fees for Clients of the Office of the Public Defender

In June, New Jersey passed a law eliminating all reimbursements for costs and services rendered by the State’s Office of the Public Defender. Previously, the Office was required to issue liens on any kind of property in their client’s possession whenever the costs of their services “appear[ed] to exceed $150 ….” According to a report by New Jersey Policy Perspective, the costs regularly exceeded $1,000 per client. In his statement announcing his signing of the bill, Governor Phil Murphy noted that “[f]or too long, we have witnessed many residents suffer from the steep prices of a public defender, many times causing them to go into debt just to cover their legal fees, and disproportionately affecting people of color.”

While New York does not charge for the use of public defenders directly, with the exception of court orders under County Law 722-d, the state does have a web of mandatory fees, fines and surcharges that create real and often insurmountable legal financial obligations for clients. A 50-state survey of supplemental fees by the Fines and Fees Justice Center recently found that New York had one of the most egregious systems, including being one of only four states that explicitly finds that an individual’s inability to pay a fee does not exempt them from mandatory payment. The No Price on Justice coalition, led by a collection of nonprofits and defender organizations, has a list of policy recommendations in this arena, including the prompt passage of The End Predatory Court Fees Act. As noted in the Oct. 28, 2021, edition of News Picks, NYSDA testified in support of the End Predatory Court Fees Act at a hearing before the Senate Standing Committee on Crime Victims, Crime and Correction

Separating Families Because of Drug Use Alone is Not Okay

An article published by Reveal and The New York Times Magazine highlights the stories of families who had their newborns removed and placed in foster care based on the mother’s use of prescription drugs without any showing that the infants were harmed in any way. A neonatologist interviewed for the article stated: “We’re presuming neglect before a baby’s even born, and it’s really problematic.” Parent attorneys are reminded that drug use by the birthing parent is not a legally sufficient reason to remove a child or even file a neglect petition. Advocates have been encouraging the Legislature to pass the informed consent bill to ensure that birthing parents receive information about drug testing of them and their newborn. Attorneys representing parents in neglect proceedings with allegations of drug use are encouraged to contact NYSDA’s Family Court Staff Attorney, Kim Bode, at kbode@nysda.org

Legislation “to Protect and Affirm the LGBTQ+ Community” Signed

Governor Kathy Hochul announced on June 25th that she had signed a group of bills intended to protect members of the LGBTQ+ community. The legislation includes the following:

L 2023, ch 141 (S.993-A/A.4903) - Requires OASAS (the Office of Addiction Services and Supports, previously the Office of Alcoholism and Substance Abuse Services) to protect the right of persons seeking addiction services, care, treatment, and rehabilitation “to access services based on their gender identity, gender expression and/or sexual orientation.”

L 2023, ch 143 (S.2475-B/ A.6046-B) - Amends the Criminal Procedure Law, Family Court Act, Executive Law, Civil Practice Law and Rules, and other laws in an effort to help New York combat other states’ policies “that attempt to ban gender affirming care and punish kids, their families, and their providers” beyond the borders of the enacting states. The new law prohibits the consideration of other states’ laws that authorize removal of a child for being provided gender-affirming care and bars a number of actions by New York law enforcement and agencies in relation to such laws.

Also L 2023, ch 139 (S.155/ A.1142) amending the General Construction Law to require the use of gender-neutral terms in any law, rule, regulation, ordinance, or resolution except when reference is to a specific person, when language gendered in accordance with that person’s identity may be used; L 2023, ch 140 (S.208-A/A.1371-A) amending the state Technology Law to require state websites to use gender-neutral terminology; and L 2023, ch 142 (S.2442/ A.7367) amending Executive Law 292 to remove outdated language in the Sexual Orientation Non-Discrimination Act.

Association News

April-June 2023 Backup Center REPORT Now Online

The latest issue of NYSDA’s newsletter, the Public Defense Backup Center REPORT, for 2023 is on the NYSDA website. NYSDA members will receive a hard copy of the issue when printing and mailing are completed. If you have any questions, please contact the Backup Center at info@nysda.org or 518-465-3524.

Upcoming Training Programs

Sunday, July 30 – Tuesday August 1, 2023: 56th Annual Meeting and Conference. Program details and registration information are available here. The event will be held at the Saratoga Hilton in downtown Saratoga Springs, with an online option for the training sessions and membership meeting. In-person attendees are encouraged to join us for a welcome reception on Sunday evening and to network with colleagues from around the state throughout the conference. Registration for in-person attendance is closed, please contact training@nysda.org to inquire about openings. To register for virtual attendance (deadline July 21, 2023), please contact training@nysda.org.

Save the Date: Thursday, September 28, 2023, 12:30 – 2:30 pm: Representing Disabled Parents: Strategies and Solutions for Preserving Their Rights with Robyn M. Powell, PhD, JD, Associate Professor, University of Oklahoma College of Law. Details and registration information coming soon.

Save the Date: Thursday, October 12, 2023, 1:00 – 2:30 pm: Litigating Crawford, with Eli Northrup, Policy Director and Defender, Criminal Defense Practice, the Bronx Defenders, with members of the Bronx Defenders Family Defense team. Details and registration information coming soon.