Queens Criminal Court Finds DWI Arrest Improper After Viewing BWC Footage
A Highway Patrol detective lacked probable cause to believe the person he saw stopped by the road was intoxicated; he also lacked authority to arrest for a violation because the alleged offense had not happened in his presence and evidence did not establish that the driver had been involved in an accident, said a Queens criminal court. Review of footage from the detective’s body worn camera (BWC) formed the basis of much of the court’s ruling. Review of the full BWC video did not substantiate the claims that the driver had “swayed” (even very minutely as the detective said) and had bloodshot, watery eyes; it “did not show someone whom the court can say was probably intoxicated.” The claim that the driver failed a horizontal gaze nystagmus test was rejected because no evidence was adduced as to the detective’s training or experience in administering such test. As for the allegation that the driver had been in an accident, the detective had observed damage to the vehicle, but a woman at the scene and the driver said no accident had occurred. The driver wasn’t sure what happened when his tires burst and caused him to veer off the road (as to which the court said, “anyone who has had their tires burst while driving knows that it is a shocking and discombobulating experience”) and explained that the damage to his car was caused a month earlier. All fruits flowing from the arrest, including an alleged refusal of a chemical test, were suppressed. People v Delgado, Docket No. CR-012918-22QN (2/9/2024).
Center for Appellate Litigation Publications Available
The March edition of Issues to Develop at Trial (IDT), from the Center for Appellate Litigation (CAL) is now available. It focuses on issues ripe for further litigation in the wake of two Court of Appeals cases. In People v Aguilar (2024 NY Slip Op 00849 [2/22/2024]), the Court upheld a trial judge’s refusal to reinstruct the jury on justification when the jury asked for “‘[a]ll definitions discussed: Murder II, Manslaughter I, Depraved murder II, etc.’ ….” CAL says that Judge Wilson’s concurrence left open, as unpreserved, the question of whether justification should have been given because absence of justification is an element of the counts to which it applies.
In People v Jordan, 40 NY3d 396 (11/20/2023), the Court revisited the question of what testimony by a medical examiner about a generated DNA profile will satisfy the Confrontation Clause. CAL asserts that to satisfy the Clause under Jordan, “the analyst must engage with the data at the stage when it comes off the capillary electrophoresis machine and is processed by software such as GeneMapper or GeneMarker. That is the critical final stage of testing when the analyst exercises judgment, because it is the point at which the analyst can concur with the software filters and edits and make their own edits.” The IDT article provides tips for using Jordan (and Aguilar) going forward.
CAL has also shared the March issue of the SCOTUS Docket Update from the CAL Impact Lit Project. The update “provides a summary of the Supreme Court’s docket, focusing on cases relevant to New York criminal law.” NYSDA thanks CAL for sharing its publications and insights!
Immigration News from WNY RIAC
The March issue of the Western New York Regional Immigration Assistance Center (WNY RIAC) monthly newsletter includes a note about implications for people who are not U.S. citizens of the Rape is Rape Act. The Act, which expands the definition of rape in New York law, was signed by the Governor in January. The newsletter notes that “a conviction for rape is an aggravated felony, which means that a noncitizen will be placed in removal proceedings with virtually no defense from deportation available to them.” The newsletter also highlights that the Immigrant Defense Project “just released Key Removal Defenses in Criminal Charge Cases + Domestic Offense Supplement,” a national resource. And the newsletter stresses in another item that conviction vacaturs “will not eliminate a conviction unless the vacatur is secured for a constitutional violation.”
NYSDA thanks WNY RIAC for sharing this information, and for its other assistance to the public defense community. Defenders are reminded to determine whether a client is a citizen of another country and, if so, to contact the RIAC in their area about possible immigration consequences of the criminal or family court case.
Fourth Dept. Reverses a TPR Based on Court Bias
In a relatively unusual, but welcome move, the Fourth Department, in Matter of Anthony J. (2024 NY Slip Op 00574 [2/2/2024]), reversed an order that terminated the parental rights of the mother based on permanent neglect and remitted for a new hearing and determination before a different judge. In a unanimous decision, the court wrote, “[w]e agree with the mother that she was denied due process of law based upon the bias against her displayed by the Family Court Judge. Initially, we note that the mother's contention is unpreserved for our review inasmuch as the mother did not make a motion for the Family Court Judge to recuse herself …. Nevertheless, we exercise our power to review that contention in the interest of justice.” The court noted that the family court judge’s “comments, in addition to expressing a preconceived opinion of the case, amounted to a threat that, should the mother continue with the fact-finding hearing, the court would terminate her parental rights ….”
While the appellate court in this case chose to exercise its discretion to review the unpreserved claim, the decision is a reminder of the importance of developing a record of judicial bias, and where appropriate, filing a recusal motion.
Class Action Suit Filed Against ACS Claiming Numerous Constitutional Violations
In a potential game changer in the world of the family regulatory system, the Family Justice Law Center of the Urban Justice Center, together with the NYU School of Law Family Defense Clinic, and two private law firms, filed suit against NYC’s Administration for Children’s Services (ACS). According to the press release issued on Feb. 20, 2024, the class action lawsuit, brought on behalf of nine named plaintiffs and a proposed class of tens of thousands more, is based on ACS’s alleged “pervasive and unnecessary practice of using highly coercive tactics to illegally search tens of thousands of families’ homes every year.” The release continues, “For ACS to enter and search a family’s home, the Fourth Amendment to the U.S. Constitution requires ACS to have a court order or obtain voluntary consent, unless there is an emergency that would justify the search without a court order or consent. This lawsuit shows that ACS maintains an agency-wide illegal practice of coercing and threatening families so it can invasively search their homes—and even strip-search their children—without a court order and in the absence of any emergency.” The full complaint can be read here, and an article from the New York Times can be found here. While this is not the first lawsuit alleging constitutional violations at the hands of ACS (see BDS lawsuit covered in Dec. 18th edition of News Picks), it stands out due to the sheer number of parents claiming harm, and the potential for long last reform, if successful.
Susan Friedman to Head Prosecutorial Conduct Commission
The Commission on Prosecutorial Conduct (CPC) announced appointment of its first Administrator on February 26th. Susan Friedman comes to the job from The Innocence Project. Before her tenure there as a senior staff attorney she was with The Legal Aid Society’s DNA Unit. Friedman’s appointment was covered by the New York Law Journal on February 26th, in an article noting the history of the CPC’s creation from initial legislation in 2018. NYSDA has long supported establishing such an entity, submitting a memo in support of a bill to create one as early as 2014. The National Chair of It Could Happen to You, the organization that spearheaded creation of the CPC, lauded this “significant first step to insuring the Commission will function with transparency and independence.”
The CPC’s announcement also said that an additional commissioner had been recently appointed to the Commission: Marne Lenox, an Assistant Federal Defender in the Southern District of New York. One remaining seat remains open, to be filled with someone selected by the Minority Leader of the state Senate. The current list of the current Commissioners is available on the CPC website.
New Rule for Requesting Judicial Accommodations for People With Disabilities
As noted in a recent press release, “the Court of Appeals has approved changes to Part 52 of the Rules of the Chief Judge, https://ww2.nycourts.gov/rules/chiefjudge/52.shtm, creating an important new procedure that authorizes judges presiding over a pending matter to entertain requests for disability accommodations on an ex parte basis ….” Some reasonable accommodations can be provided by court administration, “such as sign language interpretation, assistive listening devices, and Communication Access Realtime Translation (CART) reporting,” but other accommodations, “such as remote appearances, adjournments, and schedule changes can only be provided by the judge presiding over a pending matter. These judicial accommodations are the subject of the new Part 52 ….”
OCA Requests Public Comment on New Rules for Mental Health Professional Panels
On March, the Office of Court Administration issued a memorandum requesting public comment on proposed amendments to the Rules of the Appellate Divisions governing mental health professional panels. As detailed in the February 1, 2021 edition of News Picks, the proposals were created in response to “reports of negative experiences with court-ordered evaluators in cases involving injuries and deaths of children.”
The proposals amend the rules on the mental health professionals panel for the First and Second Departments and create panel rules for the Third and Fourth Departments. The proposed rules change the Mental Health Professionals Certification Committee to an Oversight Committee, and the modifications continue along those lines. Under the appointment rules, a disclosure of potential conflicts of interest would now be required, including whether the mental health professional has been hired by either party within the last two years. The rules would also allow all parties access to the evaluation reports, with strict rules on sharing information found in the reports, prohibiting the contents even being “quoted in litigation documents.” Finally, the rules expand the oversight committee’s periodic evaluation of panel members, including “a means by which litigants and other members of the public may submit concerns regarding the conduct or qualifications of a panel member.”
Comments must be emailed to rulecomments@nycourts.gov by April 4, 2024.
On a related note, the American Psychological Association (APA) is currently seeking “member and public comments on the revision of Guidelines for Psychological Evaluations in Child Protection Matters ….” As noted in the APA announcement: “The Guidelines are intended for use by psychologists conducting forensic evaluations related to child protection matters. They may assist or inform others, including attorneys, judges, other professionals, decision makers, administrators, and consumers. They do not guide psychological treatment or interventions (e.g., psychotherapy and counseling) provided to families, children, and adults, or address the activities of psychologists who are consulting or acting as non-evaluating investigators in child protection cases.” Comments on the APA Guidelines are due by May 5, 2024.
NYS Commission on Judicial Conduct Releases Annual Report
In early March, the New York State Commission on Judicial Conduct released its annual report. According to the report, there were 2,982 complaints against judges in 2023, a new record high and 22% higher than 2022.
From those complaints, the Commission conducted 208 new full-fledged inquiries, leading to 17 pubic dispositions. Of those dispositions, there were two admonitions, two censures, nine permanent resignation stipulations, and four removals from office. Of those 17 judges, 13 were were town or village justices, and eight were non-lawyer judges. In addition, 65 judges received confidential cautionary letters.
ID’ing a Perpetrator: It’s Complicated
In early February, NY Times columnist Ginia Bellafante wrote about a friend’s experience in trying to identify for police the man who attacked her on a sidewalk. The friend took a photo of the man through a glass door once she got inside a building. Five weeks later she was called by police to try to identify a suspect. She reviewed security camera footage of the attack with detectives. But to make an identification, she was shown photos of eight men (which she found “unnervingly similar”) rather than a corporeal lineup. She narrowed it down to three but found it hard to distinguish among those. After she selected one, the police told her that her assailant was in a different photo, and they wouldn’t take anyone into custody. What Bellafante took from this was that a “human determination” was still considered “the gold standard”—moving forward with the surveillance footage and the photo was considered too weak a case. Pointing to research about lineups and the fallibility of human memory, Bellafante questioned why the case did not go forward—why the decision was made by police, not a prosecutor—and potential human costs of abandoning the matter.
In what might be called a “flip-side” of that story, the Data for Defenders website (described in the Sept. 14, 2023, edition of News Picks) has posted a motion to exclude non-eyewitness identification testimony. Posited there is identification testimony by an officer based on review of surveillance footage circulated within the department with a notation asking if anyone knew who it was. One officer asserted that the video showed a person with whom the officer had a one-time interaction at the police station 18 months earlier. The motion to exclude testimony to that effect refers to social science research showing significant problems with non-eyewitness testimony. It includes discussion of poor-quality footage, the effects of camera angles and viewpoints, poor lighting, view obstructions, and size of the images.
The motion also covers factors that can affect eyewitness identification as well as non-eyewitness ID. These include a lack of prior familiarity with the person being identified, cross-racial identification, and delay between the prior exposure and purported identification.
Other potential uses for the research contained in the motion are set out: opposing showing of surveillance images for the factfinder to compare to the defendant; asking for a defense expert; seeking judicial notice of the unreliability of identifications; requesting jury instructions; and conducting cross-examination.
Seeking to Bar the Phrase “Sex Offender” in Jury Trials
A defense motion in limine seeking to preclude use of the phrase “sex offender” to refer to the client in front of a jury is among other sample pleadings posted at Data for Defenders. The motion cites social science research to argue that the phrase “will trigger and strengthen jurors’ reliance on inaccurate, prejudicial myths about people who have committed crimes of a sexual nature.” (For a reminder to routinely avoid prejudicial terms like “sex offender” see the Preface of Alan Rosenthal’s SORA manual, available on NYSDA’s Criminal Defense Resources webpage).
The motion template argues that as there is no need for prosecutors, witnesses, or judges to use the phrase, the danger of prejudice from doing so substantially outweighs any proffered reason for saying it in the jury’s presence. The template relies on Federal Rule of Evidence 403. Caselaw in New York has a similar standard, as noted in Section 4.06 of the Guide to New York Evidence; it says a court may exclude relevant evidence if the danger that it would “create undue prejudice to a party” outweighs its probative value. The motion template seeks to ensure the right to a trial by an impartial jury guaranteed by both the federal and state constitutions. Defenders who file such a motion, or are considering doing so, are encouraged to call the Backup Center to share ideas.
Defenders may find analogous arguments in challenges made to spectator signs or clothing in the courtroom that create sympathy or outrage or to prosecutors’ use of inflammatory nicknames or descriptions of people on trial.
Considering Mental Illness During National Criminal Justice Month
NAMI (the National Alliance on Mental Illness) is observing National Criminal Justice Month with “Overlooked: Stories of Mental Illness and the Criminal Justice System.” Seeking to “help our communities understand these experiences, raise awareness of the injustices faced by too many people and advocate for equitable treatment and support rather than discrimination and criminalization,” NAMI opposes the criminalization of mental illness. It seeks to minimize “the justice system response to people with mental illness, while ensuring that any interactions preserve health, well-being and dignity.”
Association News
Celebrating Gideon Day and Delivering on the Promise of Gideon
Monday marked the 61st Anniversary of Gideon v Wainwright. As we enter the final few weeks of state budget negotiations and continue our advocacy for needed criminal and family defense funding in the budget, we are also available to support public defenders and the work all of you do through our training programs (listed below), case consultations in criminal and family defense cases, targeted services offered by our Discovery and Forensic Support Unit and Veterans Defense Program, and our Public Defense Case Management System.
NYSDA Establishes Public Defense Recruitment and Retention Project
We are excited to announce we have started a search for the Director of our new Public Defense Recruitment and Retention project. The Director will lead a statewide project to address recruitment and retention challenges in partnership with defense offices and programs around New York.
As NYSDA’s longtime Executive Director Jonathan Gradess said: “People charged with crime and parents faced with losing their children need caring advocates who are not afraid in the public arena to challenge governmental power and not afraid in the private arena to be humble and kind with clients. The field needs imaginative, committed, long-distance runners filled with compassion, skill and commitment.”
The posting for this exciting opportunity is available on our website at www.nysda.org/page/NYSDAJobs.
Highlighting Ways Others Marked Gideon Day
We applaud Margaret Walker, the recently-appointed Dutchess County Public Defender, for her essay on Gideon’s Promise, which was published by the Times Union on March 17th. She reminds us that Gideon “affirms the principle of equal justice under the law, the most fundamental aspiration of our legal system” and that “[a]s we cherish the ideal, we must continue to deliver on the promise.”
We call on our State’s leaders to continue to deliver on this promise in the 2024-2025 SFY Budget by, among other things, appropriating monies from the Indigent Legal Services Fund (ILSF) to improve the quality of criminal and family defense services and rejecting the Executive’s proposal to transfer up to $234 million from the ILSF to the General Fund. NYSDA’s memo in opposition to the ILSF transfer is available here.
The National Legal Aid and Defender Association (NLADA), the American Council of Chief Defenders, the Black Public Defender Association, the Gault Center, and several defender offices, including New York County Defender Services, sponsored a Gideon Day press briefing focused on the state of public defense during a crime-focused election year. Video of the event is available here and a resource guide for reporters is available here. The event is part of NLADA’s “Fighting for the AccUSed: The Public Defender Campaign for Safe, Secure Communities.”
Also on Monday, the US Department of Justice’s Office for Access to Justice announced the launch of its new Public Defense Resource Hub. The Resource Hub includes information about federal funding opportunities for defense providers, court filings by the Department of Justice, including the Statement of Interest filed in the Hurrell-Harring litigation, and other reports and news links.
Upcoming Webinars
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. Register for this web training here.
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. Register here.
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. Register for this web training here.
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 be held at 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 later in the Spring.
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.
Don’t forget to check our Training Calendar to see the list of NYSDA’s upcoming programs.
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