CAL July Court of Appeals Update Available

The New York City Center for Appellate Litigation (CAL), which generously shares its bi-monthly Court of Appeals Update newsletter with the defender community, has released the July issue. This listing of significant criminal cases pending in the Court of Appeals includes gun cases scheduled for argument in the wake of Bruen, most already noted in the March 28th edition of News Picks. Cases waiting to be scheduled offer a range of issues. Defenders are encouraged to take advantage of this, and CAL’s other resources online, to learn about issues that may need to be preserved and arguments to be made about issues already spotted, etc. Thank you, CAL!

Discovery Case Law Spotlight: Matter of E.S., 2023 NY Slip Op 23135 (Family Ct, New York Co [5/4/2023])

In Matter of E.S., the Family Court in New York County considered whether to grant a juvenile’s request for misconduct records for police officers who were not being called to testify at trial.

The presentment agency acknowledged that it was obligated to produce police misconduct records for officers that it was intending to call (in accordance with CPL 245.20(1)(k)(iv) and Matter of Jayson C., 200 AD3d 447, 447 (1st Dept 2021)), but argued that it was not required to turn over records for non-testifying officers.

The court held that denying a juvenile access to records available under CPL 245.20(1)(k)(iv) would deprive the juvenile of equal protection under law: “although the Family Court Act is silent regarding the specific statutory protections memorialized in CPL 245.20(1)(k)(i)-(iii), (v)-(vii), to deny this disclosure would violate the right to equal protection as per Matter of Jayson C. and as required by constitutional precedents.”

As such, the presentment agency was required to produce police misconduct records for non-testifying officers, including all officers assigned to the case, officers who assisted in the arrest, and officers who responded to the scene.

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.

Notable Success in Domestic Violence Survivors Justice Act (DVSJA) Case

DVSJA Task Force attorneys at the Center for Appellate Litigation achieved a notable success in DVSJA re-sentencing case under CPL 440.47. In an exhaustive and thoughtful Decision and Order, the hearing court in the case of People v SS/CS (Supreme Ct, New York Co [7/7/2023]), granted relief in a resentencing proceeding that addressed difficult issues in complex and unusual circumstances involving a transgender applicant and the killing of her roommate. Of significant note was a finding by the court of the existence of an intimate relationship under the statute between roommates who did not have a traditional relationship but which “was extraordinarily destructive, encompassing sexual harassment, sexual assault, rape and murder” and “was also intensely personal.” In concluding that relief under the statute was appropriate, the court found that DVSJA’s coverage is very broad and, while the applicant had already served 26 years of a life sentence and 1 1/2 years of parole supervision, the question remained whether continuing to punish her under the circumstances by subjecting her to ongoing parole supervision is unduly harsh as contemplated by the statute. As part of the examination into the undue harshness, the court found, “[i]n addition to all of the normal consequences of serving an extended prison sentence,” the applicant’s “incarceration, as she outlined during the hearing ... was more onerous in significant ways because of the danger, harassment and assault she faced in prison as a transgender woman and her need to protect herself through protective custody.” Ultimately, the court granted relief in the form of terminating the applicant’s parole and ending further service of the life sentence.

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.

DCJS Creates Appeals Process for Firearms License Applications

Division of Criminal Justice Services (DCJS) used their emergency rule making powers to create an appeals process for firearms license applications, which was published in the State Register on July 19, 2023. The process allows an individual, within ninety days of receipt of a notice of a denial of an application, renewal, recertification, or revocation of a firearms license to appeal the determination. The appeal goes to a board created by DCJS and the State Police. The board “may” elect to hold a hearing, but the appeal can be determined based on the papers received for the application, etc. The individual “may” be represented by counsel at “any” appearance before the board, and “shall be afforded an opportunity to present additional supportive evidence.” No funds are appropriated for any step of this process.

The notice explains the new appeal procedure as necessary because of the Supreme Court’s decision in Bruen -- the “new provisions replace New York’s ‘proper cause’ requirements with a new set of requirements that protect individuals’ Second Amendment rights as determined by the Supreme Court.” If you need an overview of the firearms landscape in the year since Bruen was decided, the Apr-June 2023 issue of the Public Defense Backup Center REPORT has an update (pages 9-10).

PSLF Update, State Forgiveness Program Application Open

After a pause of over three years, federal student loan payments are due to restart in October. If you need a refresher on how the federal Public Service Loan Forgiveness (PSLF) works, the Education Debt Consumer Assistance Program has this useful primer. Other information and upcoming webinars about PSLF are available from the PSLF Coalition and the Student Borrower Protection Center. Those who may be eligible for PSLF should check the Federal Student Aid website, and look into eligibility for a one-time account adjustment, which is described in a series of blog posts by the National Consumer Law Center.

The state has its own, albeit rather limited, District Attorney and Indigent Legal Services Attorney Loan Forgiveness Program that may be of some help. Any attorney with outstanding loans that has been an “Indigent Legal Services Attorney” for between four and nine years can apply for up to $3,400 per year, for a maximum of $20,400. The application deadline is Aug. 24, 2023.

Video Mitigation’s Rising Use in Public Defense

The New York Times reported on the growing practice of video mitigation in public defense. Documentary-style videos are being used to provide a comprehensive understanding of defendants’ lives, argue for lenient treatment, and supplement written memos in plea bargaining as well as motions to dismiss. Mitigation videos have traditionally only been available to wealthy defendants, but now the Legal Aid Society’s Video Mitigation Project led by Nicole Mull Esq., Fordham University’s criminal defense clinic, run by Cheryl Bader, and David Simpson of Courthouse Documentaries are spearheading efforts to expand its use in public defense. The initiative has already yielded favorable outcomes and is currently scaling up to provide more public defender offices access to this valuable resource.

2015 Lawsuit Over Suffolk Police Discrimination Against Latinos Settled

A media release from LatinoJustice PRLDEF announced a federal court’s approval on July 14th of the settlement of a class action lawsuit on behalf of Latino residents of Suffolk County who were subjected to discriminatory traffic stops. Terms include requirements that the Suffolk County Police Department (SCPD) collect and publish data about traffic and pedestrian stops; require officers to record reasons and other details about a stop; train officers to combat implicit bias; limit vehicle searches; provide business cards in both English and Spanish and use body-worn cameras; hire aides fluent in Spanish; designate a detective as primary contact for all U-visa certificates provided; and investigate SCPD applicants for white-supremacist ties. A financial settlement for the named plaintiffs is included. As reported by Gothamist.com, this “agreement with LatinoJustice adds additional requirements on top of a 2013 agreement that demanded police reforms and federal oversight.”

Not long before this settlement highlighted discriminatory stops in one area of New York State, NYSDA offered a CLE webinar on “New Developments in Challenging Police Pretext Stops.” The presentation noted that police who have a legal basis to stop someone do not violate the state or federal constitution just because they had an ulterior motive for the stop. But the training challenged defenders to work within that existing authority, question that authority, and work to create new authority to challenge pretext stops. Studies show such stops are conducted in racially disparate ways; included in the material was a citation from the Vera Institute of Justice report saying the ending pretext stops would be an important racial justice step.

The settlement also comes at a time of “Focusing on Latinos in the U.S. Criminal Justice System,” the title of a Safety+Justice Challenge post about three new policy briefs. Flowing from the John D. and Catherine T. MacArthur Foundation’s Safety and Justice Challenge, the “briefs explore how to better track Latino involvement in criminal justice systems, the role of language accessibility in criminal justice systems, and the value of adopting a nuanced approach to immigration enforcement policies at the local level.”

OCFS and Its Partners Announce Cash Assistance for “At Risk” Families

The Office of Children and Family Services (OCFS) announced the launch of a pilot program that will give 150 families at risk of poverty-related neglect stipends of $500 per month for one year. Acting OCFS Commissioner Suzanne Miles-Gustave said in the June 9, 2023, press release, “‘For far too long, the child welfare system focused on a caregiver’s perceived deficits, often punishing them for simply lacking adequate resources. This program does much more than provide a monthly stipend; it helps ensure financial stability. By lifting such a heavy burden, families will feel less strain and have new-found independence to meet their needs, two key factors that encourage a nurturing environment essential for a child’s well-being and overall family strength.’” NYSDA is encouraged by this modest investment to address a monumental problem. Still, we are saddened that it does not begin to scratch the surface of the real problem with the family regulation system, the intensity with which it destroys poor, Black, and brown families.

BU Center for Antiracist Research is Surveying Attorneys on Expert Evidence Regarding Racism

Attorneys at Boston University’s Center for Antiracist Research are asking criminal defense attorneys to take a confidential survey on use of expert evidence about racism. The goal is to “help inform policy recommendations, scholarship, and expert witness trainings.”

Recording Available: Understanding and Addressing Race-Related Stress and Trauma for Black Americans

The New York Association of Psychiatric Rehabilitation Services (NYAPRS) posted, in early July, information about an on-demand recording by Dr. Sierra Carter that “provides an overview of the field of racism-related stress and trauma among Black Americans.” https://www.youtube.com/watch?v=KklqpV5RDMk. NYSDA has added this link to its Racial Justice and Equity webpage as part of its ongoing commitment to exposing and helping end systemic racism in the legal system in which public defense clients are immersed and addressing the individual and collective trauma that results from such racism. Many thanks to NYAPRS, “a statewide coalition of people who use and/or provide recovery oriented community based mental health services,” for making this resource known.

OMH Publishes 4th 988 Hotline Newsletter

The Mental Health Association of New York State (MHANYS) has posted the fourth edition of the NYS Office of Mental Health (OMH) “988 Updates and Education Newsletter,” also available on the OMH website. A News Picks item in the Aug. 31, 2022, edition discussed the rollout of the 988 Suicide and Crisis Lifeline; concerns heard at the time included fears around police responding based on calls to the hotline, with possibly fatal results.

A year has passed since the rollout, and discussion has focused on data about calls received. An American Psychological Association post this July 1st noted that the Lifeline received over 3.6 million contacts from July 2022 through March 2023, and that improved accessibility to help at a time of rising need was creating a challenge—too few mental health providers to adequately staff call centers.

The limited reference to police response was a note that trained counselors on the Lifeline “only call the police as a last resort when it is essential to save someone’s life.”

An Alaska Public Media report on July 17th noted that fear of unwanted police interactions resulting from a 988 call persists. The report, drawn from a Tradeoffs.org podcast, said that “half of LGBTQ+ people in a recent survey by Pew Charitable Trusts said they worried a call to 988 could end in an unwanted interaction with police or a forced hospitalization.” NYSDA welcomes information from defenders on 988 and other crisis services available (or not) to their clients. NYSDA continues to advocate for non-criminalizing, non-carceral approaches to crisis situations in which mental illness, substance use disorder, and similar challenges play a role.

Council on Community Justice Convenes for First Meeting

Governor Hochul recently announced the creation of the New York State Council on Community Justice, which met for the first time in New York City on July 19. The Council is expected to meet quarterly with a focus on alternatives to incarceration such as rehabilitation and treatment. According to the Governor’s recent press release, the Council’s purpose is to review policies and programs and “propose new measures to strengthen the State’s efforts to advance equity, reduce disparities, and decrease recidivism to make communities safer and stronger.”

As noted in an editorial from The Daily Gazette, the creation and “meeting of the minds” is a promising step forward for reform despite the absence of legislative and crime victim stakeholders. NYSDA is glad to announce that with our Executive Director, Susan Bryant, as one of the council members, defenders statewide will have a voice in the room.

The advisory group is co-chaired by Lieutenant Governor Antonio Delgado and DCJS Commissioner Rossana Rosado. Members include DOCCS Acting Commissioner Allen Riley, Chair of the state Commission of Correction; Darryl Towns, Chair of the state Board of Parole; Jamie Frank, SUNY Associate Vice Chancellor for Policy Implementation; Joseph Zayas, state Office of Court Administration Chief Administrative Judge; Karol Mason, President of John Jay College of Criminal Justice; and Marcos Soler, Governor’s Deputy Secretary for Public Safety. Leaders from the following agencies and community organizations round out the council’s membership: Bard Prison Initiative; Bronx District Attorney’s Office; Center for Community Alternatives; Center for Employment Opportunities; Center for Justice Innovation; Columbia Justice Lab; Common Justice; The Doe Fund; Erie County District Attorney’s Office; Fortune Society; Hour Children; Hudson Link; Independent Commission on New York City Criminal Justice and Incarceration Reform; LEAD National Support Bureau; Legal Action Center; The Legal Aid Society; Osborne Association; REFORM Alliance; Vera Institute of Justice; and Women’s Prison Association.

ILS Announces a Third RFP for RIAC Offices

The NYS Office of Indigent Legal Services (ILS) announced the availability of funds for the Third Regional Immigration Assistance Centers (RIAC) Grant. “The intent of this Request for Proposals (‘RFP’) is to support regional initiatives designed to improve the quality of legal services provided pursuant to County Law Article 18-B to noncitizen clients. Ensuring the right to effective representation of counsel is essential to a fair justice system.” The RIAC RFP is for three years and is available to all counties outside of NYC. The awardees will be expected to cover one of the five regional offices in NYS. Those with questions about the RFP are encouraged to participate in ILS’s Q&A period which closes on Aug. 14, 2023, and all proposals are due by Sept. 5, 2023. Please click here for more information.

Association News

Client-Centered Representation to be Celebrated at Annual Conference

NYSDA’s Annual Meeting and Conference in Saratoga Springs offers a celebration of outstanding client-centered representation along with CLE training for both criminal and family defenders to facilitate high quality practice. Several awards will be presented.

The Jonathan E. Gradess Service of Justice Award, which recognizes individuals or organizations that have provided outstanding support to public defense and to the Association, focuses this year on defenders defending discovery. Three individuals and an office will be honored for their work on stopping discovery reform rollbacks and ensuring the law is implemented in the face of staunch opposition. They are: the Steuben County Public Defender’s Office; Kalle F. Condliffe and Amanda E. Jack, Staff Attorneys at The Legal Aid Society Criminal Defense Practice; and Yung-Mi Lee, Legal Director, Criminal Defense, Brooklyn Defender Services. The award is named for NYSDA’s founding Executive Director.

Nathaniel L. Barone, Chautauqua County Public Defender, will receive the Wilfred R. O’Connor Award. NYSDA created the award, first presented in 2005, to remember a long-time President of the Association and his sustained commitment to client-centered representation of the poor.

The Kevin M. Andersen Memorial Award goes this year to Eric T. Weyand, Assistant Public Defender, Essex County Public Defender’s Office. The award originated

in the Genesee County Public Defender’s Office, which selected recipients from 2005 through 2022, to honor its namesake’s dedication to public defense and his compassion for his clients.

Congratulations to all! NYSDA will publish details about the recipients and their awards after the conference.

Upcoming Training Programs

Friday, August 18, 2023, 9:00 – 4:40 pm: 7th Annual DWI Master Class: Thinking “Outside of the Box” When Handling an Impaired Driving Case. Cosponsored with the National College for DUI Defense and the Ontario County Public Defender’s Office, this program will include presentations on:

• The Good, the Bad, and the Ugly: Dealing with Body Worn Cameras in the DWI Case with Edward Fiandach;
• Best Practices for SFST Cross-Examination with Jonathan Cohn and John Sandle;
• Changing Lanes on Pretext Stops: New Approaches to an Old Problem with Jill Paperno;
• A Simple Approach to Cross-Examination in Blood Test Cases with Eric Sills;
• How to Use the Chemical Test Discovery that Law Enforcement Hoped You Would Never Get with John Leonard;
• Absolutely Everything is ‘Relevant’: Using the Discovery That You Fought So Hard For with Delton Caraway and Brian Leeds; and
• Developing Your “Theory of the Case” for Impaired Driving Cases with Joseph Gerstenzang.

The program will be in hybrid format, to be presented live at the Finger Lakes Community College in Canandaigua, New York, along with a web training option. There is no cost for this program, and it will offer up to 7.0 CLE credit hours. Details and registration information are available here.

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.