Discovery Hanging in the Balance as Budget Stalls

The word “relevant” “could derail a conceptual agreement on” proposed changes to the discovery statute, CPL article 245, a March 28th article in the Times Union said. Assemblymember Latrice Walker pointed out that to “rewrite the standard for what’s considered discoverable material from items ‘that relate’ to the case, which is considered more expansive, to items ‘relevant’ to the case” amounts to a rollback of the long-needed reform that took off the blindfold hampering proper defense.

The Finger Lakes Times reported on March 27th that regional public defenders were opposing rollback of discovery reform, while local prosecutors support Gov. Hochul’s proposed changes; this reflects positions statewide. The prosecution-led efforts to roll back discovery reform would have the public believe that the law is harming public safety. Rebuttals to that include Cardozo School of Law professor and clinic director Kathryn Miller’s op-ed on CityAndStateNY.com and the ongoing advocacy of the Alliance to Protect Kalief’s Law, of which NYSDA is a member; information is posted on the Alliance website. Past News Picks—March 11th and February 18th —provided information on the legislative battle.

Criminal Legal System Reforms Helps Public Safety, Data Shows

An op-ed in the Times Union on March 24th noted that studying data from Houston, TX, following reforms in bail and the timing of discovery yielded results that surprised the researchers. Ultimately, author Brandon Garrett said, “[m]ore discovery, better public defense, and ending cash bail all improved both fairness and safety. …. It does not help public safety to handle cases without exchanging information with the other side and making rushed, error-prone judgments. Innocent people will get wrongly convicted and serious, meritorious criminal cases will be harmed by poor procedures.” Here in New York, divisive arguments about reforms too often mask the fundamental truth that, in the words of the op-ed’s author, “[d]ue process protects us all ….”

WNY RIAC Newsletter: Advice and Info for Defenders with Immigrant Clients

The March 2025 issue of the Western New York Regional Immigration Assistance Center (WNY RIAC) monthly newsletter offers “some bullet points of advice and up-to-date information to assist defense attorneys in navigating” current federal enforcement efforts against non-citizens who have state court proceedings. The newsletter notes that the published advice does not replace the need to reach out to a RIAC for advice on specific cases for clients facing criminal charges or adverse findings in family court. The contents reflect changes in federal immigration enforcement policies and their impact in New York State. It also reminds attorneys that People ex rel. Wells o/b/o Francis v DeMarco, 168 AD3d 31 (2nd Dept 11/4/2018), is applicable statewide, there being no contrary holding from another appellate court in the state. The case holds that “New York state and local law enforcement officers are not authorized by New York law to effectuate arrests for civil law immigration violations.”

NYSDA works with WNY RIAC and others to provide training and information for defenders, including questions to ask—and not ask—to determine whether a client is not a U.S. citizen. The Metropolitan Trainer held in New York City on March 14th included an Immigrant Defense Practice Update presentation by lawyers from the Immigrant Defense Project. And NYSDA is hosting a training on Protecting the Rights of Non-Citizens in Family Court this Thursday, April 3rd, at 12:30. Registration information appears below in Association News.

Three More New York Police Agencies Come to Official Cooperation Agreements with ICE

Over the month of March, three more police organizations in New York came to cooperation agreements with Immigration and Customs Enforcement (ICE) efforts. The Broome County Sheriff’s Office, Nassau County Sheriff’s Office, and Nassau County Police Department all agreed to conduct “immigration enforcement” on people even if not in police custody, and to “receive and house” people already detained by ICE. Previously the only agency in New York to officially coordinate with ICE was the Rensselaer County Sheriff’s Office, which has been doing so since 2018.

In response to this development, Deka Dancil, assistant director of field organizing at the New York Civil Liberties Union (NYCLU), said: “When local law enforcement act like ICE agents, it creates deep distrust, making immigrants scared to speak to local police and harder for officers to do their jobs.”

In February, NYCLU issued a press release reminding New York agencies that they “cannot hold immigrants for ICE,” which included a link to an updated attorney practice reminder on the DeMarco case noted in the WNY RIAC newsletter discussed above. NYCLU also strongly condemned the use of Nassau County officers being “deputized” as ICE agents.

Hundreds Trafficked to El Salvadoran Prison with no Due Process, Citizens Next?

On March 16th, the Trump administration openly defied a federal court order and deported hundreds of abducted Venezuelan men to a prison in El Salvador. While the White House has claimed that the men were “foreign alien terrorists,” the federal government has provided no basis or evidence supporting that claim. Trump backed his action in the invocation of the Alien Enemies Act, a 1798 wartime law allowing for explicit ethnic cleansing of a targeted foreign-born population.

The deported men were trafficked to CECOT, a facility built to detain people deemed El Salvadoran gang members, known for human rights abuses and torture. A sworn declaration filed the night of March 19th alleges that one of the men targeted and deported by ICE, Jerce Barrios, followed the appropriate legal pathway to apply for asylum once he entered the United States. Mr. Barrios, who fled Venezuela after being tortured for protesting the Maduro regime, was a professional soccer player in his home country. The federal government alleges that a tattoo of a soccer ball on his arm renders him a member of Tren de Aragua.

The failure to comply with basic due process protections leads to detention and deportation of not only non-citizens, but citizens as well. As news of immigration raids and people disappearing become regular headlines, we are also reminded about the detention and deportation of U.S. citizens that has happened in the past and recent years.

Family Court Cannot Set Conditions on a Parent’s Right to File a Custody Modification Petition

In Matter of Shakema R. v Mesha B. (2025 NY Slip Op 01512 [3/14/2025]), the Fourth Department held that it was an error for the lower court to condition the father’s ability to file a family court custody modification petition on the happening of a specific future occurrence, also known as a condition precedent. In this case, the Erie County Family Court awarded the mother sole custody, and the father supervised visits of the subject child. Contained within the order was a provision that, in order for the father to petition for additional parenting time in the future, he would have to show proof that he engaged in and was compliant with mental health treatment. This type of provision is contrary to established law throughout the appellate departments that a custody modification must be based on the best interests of the child, given the totality of the circumstances at the time the case is heard. Case law is clear that contact with a non-custodial parent is generally presumed to be in the best interests of the child.

Family Defenders are encouraged to object to a court’s attempt to impose a condition precedent on the parent’s right to file future petitions. The Second Department offers a thorough recitation of the law in Matter of Nathaniel v Mauvais (234 AD3d 766). In that case, the court held that “[a] court deciding a custody proceeding may properly direct a party to submit to counseling or treatment as a component of a visitation or custody order [citations omitted]. ‘However, a court may not direct that a parent undergo counseling or treatment as a condition of future parental access or reapplication for parental access rights’ [citations omitted].” The Second Department held that the family court erred in conditioning the mother’s future petitions for modification of her parental access on her enrollment in mental health treatment. It is important to note that the prohibition on setting condition precedents in custody cases is not limited to mental health counseling. It applies to any type of future event.

Those with questions can email NYSDA’s Family Court Staff Attorney, Kim Bode, at kbode@nysda.org.

Cellebrite Using AI to Summarize Evidence on from Seized Mobile Phones

Under the guise of reviewing evidence to find patterns and connect the dots quicker than traditional human only review, Cellebrite has test run its artificial intelligence (AI) in at least one police department in Pennsylvania (Susquehanna Township) to summarize chat logs and audio from seized cell phones. As you read this, an alarm should be sounding in your head for at least two reasons: (1) Cellebrite’s AI is not transparent and therefore results are not reliable; and (2) AI combing through all chats and audio without sufficient probable cause violates your client’s Fourth Amendment rights. 404 Media reported that the Susquehanna Township police praised the technology for allegedly assisting them with “‘link[ing] a series of porch package thefts to an international organized crime ring’“ by summarizing and translating chat messages. As stated by ACLU surveillance and cybersecurity attorney, Jennifer Granick, if the police had “‘no reason to suspect that [the porch robberies] are part of a criminal ring, you are not allowed to fish through the data on a hunch, in the hopes of finding something, or “just in case.”’” Ms. Granick highlighted the fact that AI as deployed by Cellebrite in this case is meant to find patterns at the price of ignoring other information. She and the ACLU have been stressing the importance of limiting cell phone, computer, and social media searches to discreet time periods and categories of data.

To learn more about challenging software- and AI-generated evidence and dealing with AI analytics and Fourth Amendment violations, register for our Discovery & Forensic Unit’s upcoming webinars that appear in Association News below.

Prison Violence Studied, Prison News Continues

A March 20th article on Governing.com addressed the question, “What’s Driving the Uptick in Violence at New York Prisons?” Among the topics it touches on is the claim that the Humane Alternatives to Long-Term Solitary Confinement Act (HALT) underlies the increase. According to Jennifer Scaife, Executive Director of the Correctional Association of New York (CANY), “HALT’s implementation has been flawed and has led to violence and fears of violence among incarcerated people ....” The data on violence is murky, according to CANY. Rising reported incidents can flow from increased violence or just from increased reporting and/or expanded definitions of violence – brushing into a prison employee’s shoulder may be logged as an assault. The article touches on causes of prison violence, such as trauma-induced changes in brain function that lead to acting out in the face of a dangerous environment. Both people working in prison and those incarcerated there are exposed to high stress and traumatization. Understaffing and lack of services leading to deprivation of the programming required by HALT are factors. Proposed measures to lower violence include providing incentives for good behavior and “addressing trauma and promoting a more community-minded culture….”

The announcement of a settlement of the illegal strike by correctional officers, noted in the March 11th News PIcks, did not yield an immediate return to routine at many facilities. A March 16th article on PressRepublican.com said that National Guard members remain at prison posting. The article also detailed some of the fallout from the strike. The strikers’ demand that HALT be repealed has generated continuing advocacy around the issue during State budget negotiations. Recent visible support for maintaining HALT includes "A Video Letter from Jerome Wright to Gov. Kathy Hochul" and an op-ed in the Times Union, “With HALT concessions, state rewarded an unlawful strike.”

The NYS Department of Corrections and Community Supervision (DOCCS) has posted updates on visitation and new visitation security guidelines. Last week, The Legal Aid Society issued a report on “The Ongoing Human Cost of the Illegal DOCCS Strike.” And the HALT Solitary Campaign and a number of other organizations have been posting on social media platforms about the inhumane conditions and experiences of those currently in DOCCS facilities.

Conflicting Pleas Regarding Corrections Officers’ Use of Body-Worn Cameras

The New York Daily News reported that a letter to Governor Hochul and DOCCS Commissioner Daniel Martuscello with a petition from Wende Correctional Facility (near Buffalo) called for changes in the facility: opposing the installation of additional cameras and calling for a more limited use of body-worn cameras (BWC) for corrections officers. The petition was allegedly signed by those incarcerated at the facility, but an investigation is underway as the petition signers’ pleas for additional privacy do not compute with the long history of and recent spate of increased brutality and deaths in prisons at the hands of corrections officers captured on camera. One mother of an individual detained at Wende Correctional has spoken out, relaying that her son sent her a copy of the petition and said, “officers were handling [sic] out the petition and asking prisoners to sign it or face extended lockdowns.”

Mere days before news of the Wende petition broke, the New York State of Politics reported that the Inspector General’s Office called on the NYS Division of Criminal Justice Services (DCJS) to update its 2015 model BWC policy to address changes in technology. The letter highlighted that contracts between the BWC provider (in many cases, Axon) and the individual purchasing agencies vary widely in recording and preservation options. Individual law enforcement and corrections agencies have also implemented a variety of BWC policies. The letter underscored that the discovery of the video recall feature in the brutal killing of Robert Brooks at Marcy Correctional led the Inspector General’s Office to speak with Axon body camera representatives, which shed light on the various camera features that the law enforcement or corrections agency has the complete discretion to engage or disengage.

As noted in the letter and the State of Politics article, in stand-by mode, a “video recall feature allows for up to 18 hours of video to be recorded automatically, which allowed body-worn cameras footage of [Robert] Brooks’ being attacked to be recovered.” When an Axon BWC is powered on, it can record up to 18 or 24 hours of video, depending upon the model. The video is stored locally on the camera by default and must be extracted manually or else it is overwritten. However, with the “Automatic Video Recall” feature (available at an extra cost), video is automatically uploaded to cloud storage and retained for as long as selected by the user agency. The Axon features of Video Recall and Automatic Video Recall are optional. Noting the factors to be considered when adopting a policy, the Inspector General “recommend that DCJS incorporate awareness of these features into their model policy, that the relevant agencies address these features in their body-worn camera use policies, and that investigators and prosecutors familiarize themselves with such features in all investigations that rely on body-worn camera evidence.”

The State Budget includes a proposal to codify the DOCCS BWC program, which the Senate and Assembly included in their one-house budget bills. Among other things, the proposal would require DOCCS to provide BWCs “that will be powered on and worn by corrections officers and security supervisors at all times, while on duty,” lists activities and incidents where staff must manually activate their BWCs, regardless of the presence of fixed cameras, and requires preservation of recordings for at least 90 days.

Part Two of the NY Focus Look at CIUs

Shielding prosecutors whose conduct led to exonerations has been a pattern in the work of Conviction Integrity Units (CIUs) within District Attorney offices, according to an investigation by New York Focus and Columbia Journalism Investigations published on March 13th. This sometimes leaves only police misconduct as the basis for recognizing that a conviction was wrongly obtained, the new report says. It asserts that while “prosecutorial misconduct may have played a role” in half the exonerations supported by CIUs in the last 15 years, officials acknowledged improper prosecution behavior in less than 20 percent. Where evidence supporting an exoneration is characterized as “new” rather than as having been withheld, the wrongly convicted person may not be able to obtain compensation for their years of imprisonment.

This story is the second release of information from the joint investigation. The first was noted in the March 11th edition of News Picks.

Surveillance Won’t Resolve Unaddressed Poverty, Advocate Urges

Ashley Cross, Executive Director of Hope 585, a Rochester-based advocacy program that connects CPS-involved families to resources, penned an op-ed in the Imprint Youth and Family News, raising alarm bells about the connection between poverty and accusations of neglect in Rochester. Cross wrote, “I cannot ignore the indignities and hardships faced by families in poverty in this area,” and pointed to the “troubling connection” between CPS investigations and poverty. She noted that of the approximately 10,000 reports of abuse and neglect received annually, 76 percent are unfounded. “These cases, mostly labeled as neglect rather than abuse, often stem from poverty-related factors like inadequate food, shelter or medical care rather than intentional harm.” She concluded with a plea for less surveillance of families, and more “compassionate, community-driven care solutions that strengthen family bonds.” Hope 585’s policy agenda can be found on its website. Among other things, it includes support for two bills pending in the New York State Legislature, the Family Court Miranda Act and the Preserving Family Bonds Act.

Court of Appeals Rules Amended: “Poor Person Relief” Now “Financial Relief” and “Indigency” is Gone

The Rules of Practice of the Court of Appeals, 22 NYCRR Part 500, have been amended, as noted in the March 5th issue of the State Register. In Rule 500.3, Fees, the phrase “poor person relief” has been changed to “financial relief pursuant to CPLR 1101” (which also encompasses the formerly separate category of those “requesting relief from payment of the filing fee”). The provisions affected are 500.3(a)(3) and (4); (b)(3) and (4); and 500.21(g) (1) and (2). Further, the requirement in Rule 500.1(o), that parties granted or seeking poor person relief submit an additional copy of papers filed if they want acknowledgment of receipt, has been removed. And the word “indigency” has been removed.

It is hoped that any other court provisions about public defense currently containing some form of the word “indigency” will be similarly amended. The language matters because indigency is not the standard for eligibility; County Law 722, which codifies public defense in New York, calls for public representation of those “who are financially unable to obtain counsel.” The language of Family Court Act 262 is similar (though the heading refers to “indigent persons”). NYSDA has long stressed that eligibility for publicly paid counsel should not be equated with “indigency.” See the February 9th memo updating Chief Defenders on current federal poverty guidelines: “The constitutional and statutory standard for determining eligibility is ‘financially unable to afford counsel,’ not indigency.” (Footnote omitted.) See also our 2004 standards, Standard VII and, before that, our 1994 paper on Determining Eligibility, cited in commentary in the current Indigent Legal Services Office Standards for Determining Financial Eligibility for Assigned Counsel.

Pennsylvania Defender’s Op-Ed Stresses Public Benefits of the Work

“Investing in public defenders is essential for justice to be served,” read the headline of an op-ed in City and State Pennsylvania last month. Describing public defense as more than getting a good case result, it says that public defense is “also about setting an individual up to successfully reenter the community and, hopefully, to maintain that success in the long term”; that “[i]t is in the community’s best interest to address the problems that led to the criminal conduct if the ultimate goal is to avoid further negative behavior”; and that this “also saves the local taxpayers quite a bit of money.” Some readers may find the focus on lowering crime a distorted view of what public defenders [should] do. Or observe that it fails to recognize the importance of helping clients who are wrongly charged or overcharged due to criminalization of poverty, racism, and other systemic factors (it does say that “[t]he vast majority of my clients are good people in bad situations”). Or readers may protest that the op-ed overlooks the importance of a strong defense for every client, period, in our adversarial system. But the article stands as one example of a defender trying to make this work resonate with the public that ultimately funds it. Defenders here in New York who have published opinion pieces or other writings about their work are encouraged to share them with NYSDA.

First San Francisco Victory Under California RJA

“[A] San Francisco judge has granted the city’s first successful motion under the California Racial Justice Act (RJA), recognizing that implicit bias influenced a police officer’s testimony in the case of a young Black man.” This lead appeared in a March 11th article posted on DavisVanguard.org. As explained in an April 22, 2024, post on the Stanford Racial Justice Center website, the California RJA was intended as a “countermeasure” to “the seemingly impossible standard set in 1987 by the U.S. Supreme Court in McCleskey v. Kemp.” The new decision, like the North Carolina case noted in the March 11th News Picks, may suggest to some that state RJA legislation can counter erosion of federal constitutional protections against racial and other forms of discrimination. The Stanford Racial Justice Center website post concluded: “It is still to be determined what type of impact the RJA will have on criminal justice in California, particularly for communities most impacted by racial disparities. The results have so far been mixed, with ongoing questions about efficacy, practicality, and fairness. Nonetheless, the RJA has raised several important issues regarding the criminal legal process worth further examination and provoked the kind of dialogue that will hopefully challenge the thinking around and approach to racial justice in America.” 

Association News

NYSDA Joins Amicus in Support of a Father Wrongfully Found to Have Neglected His Child

NYSDA joined one of the three amicus briefs filed in the Court of Appeals in support of the father in Matter of Lukas B. In its April 2024 decision, the First Department found that the father neglected his child by failing to stop the mother from using drugs while she was pregnant. The amicus brief argues that this finding violates constitutional and statutory law and threatens the bodily autonomy of the family unit and the individuals involved. Fellow Amici, Pregnancy Justice, issued a press release that provides more information about the stakes involved in this case. Links to the three briefs can be found here. 

Upcoming Webinars and In-Person Training Programs

NYSDA’s Discovery and Forensic Support Unit is excited to welcome two new-to-NYSDA presenters and announce two new forensic webinars. Dr. Marc Canellas, Assistant Public Defender with the Forensics Division of the Maryland Public Defender’s Office, will be helping attendees understand multiple bases for challenging software- and AI-generated evidence on Wednesday, April 2nd. Then on Wednesday, May 21st, Professor Andrew Guthrie Ferguson, a nationally recognized expert on predictive policing, big data policing, and emerging surveillance technologies, will be joining us to speak about “AI Analytics and Fourth Amendment Challenges.” You won’t want to miss these free webinars!

• Wednesday, April 2, 2025, 2:00 – 3:30 pm, Challenging Software- and AI-Generated Evidence (free webinar). For more information and to register, click here.

• Thursday, April 3, 2025, 12:30 – 1:45 pm, Protecting the Rights of Non-Citizens in Family Court (free webinar). For more information and to register, click here.

• Wednesday, May 21, 2:00 – 3:30 pm, AI Analytics and Fourth Amendment Challenges (free webinar). For more information and to register, click here.

• Thursday, June 26 — Saturday, June 28, 2025, Practical DWI Detection & Standardized Field Sobriety Testing (SFST) Instruction Course. This three-day program is in person in Albany. The cost to attend is $500 per person (meals and refreshments are included). Spots are extremely limited. Those who would like to attend are encouraged to register now. For more information and to register, click here.

Application Period Open for the 2025 Basic Trial Skills Program

Our annual Basic Trial Skills Program will return to Skidmore College in Saratoga Springs from Sunday, June 8 to Friday, June 13, 2025. The application deadline is Friday, April 4, 2025. Anyone interested in applying should contact their defender program chief or NYSDA directly at training@nysda.org.

SAVE THE DATE: NYSDA’s 58th Annual Meeting & Conference will be held at the Saratoga City Center and Saratoga Hilton located in Saratoga Springs from July 27 to 29, 2025. The conference will again feature training for criminal and family defenders and defense team members and various networking opportunities. Program registration will be available later in the Spring.

Hotel Reservations: Rooms at the Saratoga Hilton are available now for booking: https://book.passkey.com/go/NYSDefenders2025. The special room rate of $212 (for a standard room) is available through June 27th.

Don’t forget to check our Training Calendar to see the list of NYSDA’s upcoming programs.