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State Budget Finally Done after Lengthy Negotiations on Policy Issues
On Friday, the Governor signed the bills necessary to enact the 2025-2026 State Fiscal Year budget, thirty-eight days after the March 31st deadline. The delay was primarily a result of the Governor’s insistence that the budget include sweeping changes to laws governing criminal discovery and involuntary commitment, as well as other policy changes. Details about defense funding and numerous legislative changes of interest to the defense and client communities are available in NYSDA’s enacted budget memo,
Discovery Changes and Other Legislative Changes
As reported in recent editions of News Picks, the Governor’s proposed budget included language that would have amounted to a full rollback of the hard-fought discovery reforms enacted in 2019. NYSDA and the other members of the Alliance to Protect Kalief’s Law worked tirelessly to educate legislators about how the law has been working in counties around the state while countering misleading data and false information. Ultimately, the worst elements of the proposal were removed. As noted in the Alliance’s statement after the budget passed: “We are grateful to Speaker Heastie, Majority Leader Stewart-Cousins, and many other lawmakers—including members of the Black, Puerto Rican, Hispanic, and Asian Legislative Caucus—for fighting against the proposed rollbacks and seeking the input of impacted people, defenders, and advocates throughout the fight.”
While the harm was mitigated, the final budget did include changes to Criminal Procedure Law article 245 and section 30.30. L 2025, ch 56, Part LL (pp. 125-131). This Part amended provisions in CPL 245.10(1)(c); 245.20(1), (2), and (6); 245.30(1); 245.50; 245.70; 245.90; and 30.30(5). NYSDA has been analyzing the amendments to the discovery law and will be issuing guidance about the changes in the coming weeks. The changes will take effect on August 7, 2025.
The final budget includes changes relating to the age limitations for state corrections and state police officers, strengthening of the State Commission of Correction, and laws governing the use of body cameras in state prisons,
One policy change that was not in the Governor’s proposed budget nor the one-house budget proposals that ended up in the final budget is the repeal of the existing CPL article 182 and enactment a new article 182 to govern electronic court appearances. L 2025, ch 55, Part WW (pp. 81-83). As noted in the enacted budget memo above, defense attorneys are strongly encouraged to review the text of the new article 182 to ensure that they, the court, and any other party are complying with the law. NYSDA reaffirms its opposition to virtual appearances for non-emergency proceedings deemed critical stages and for any proceeding, absent the consent of the person whose case is being heard, and we are examining next steps for addressing these changes.
We will be offering training on the discovery law amendments and some of the other changes at our Annual Meeting and Conference on July 27-29, 2025, and at future webinars and live training programs, which will be posted on our Training Calendar.
Defense Funding
As has been all too common, policy issues overshadowed the financial aspects of the budget. Of note, the final budget includes $25 million for family defense representation, which is $5.5 million more than last year. The ILS Office sought $50 million for parental representation. While additional funding is welcomed, the increase is insufficient to address the crisis in family defense. We will continue to fight for family defense funding that ensures that all clients receive quality representation.
NYSDA’s budget has been restored to the same level as last year. From all of us at NYSDA, thank you to all of you, the public defense community, and others who supported our funding request. We look forward to continuing to provide you with assistance through our Public Defense Backup Center and Veterans Defense Program!
Information Provided on Accessing Law Enforcement Records
Many records can be obtained from law enforcement using New York’s Freedom of Information Law (FOIL) and the federal Freedom of Information Act (FOIA). While police disciplinary records have garnered much attention here in the wake of discovery reform and the repeal of Civil Rights Law 50-a that had shielded such records, other records may be of interest to defenders and advocates for justice. On April 8th, MuckRock posted a guide for using FOIA to access law enforcement records. The tips there may be helpful for those pursuing New York FOIL requests.
NYSDA works to keep attorneys updated on the law relating to FOIL and law enforcement records (see the March 11th edition of News Picks regarding two Court of Appeals decisions). Police resistance to disclosure continues despite repeated court holdings. An April 2nd decision, Matter of New York Civil Liberties Union v Suffolk County—holding that a trial court “properly directed the appellants to disclose the subject records of unsubstantiated, unfounded, or exonerated allegations of police officer misconduct, subject to any authorized redactions or exemptions”—was criticized by the president of the Suffolk Police Benevolent Association in a Newsday article. He “said the ruling ‘weaponizes’ records about unfounded misconduct allegations against officers, exposing them to threats and harassment.” NYCLU assistant legal director Bobby Hodgson “called the ruling ‘a huge win for transparency,’" noting that for five years after the law was changed to make such records available, “‘the people of Suffolk County have not been given access to those records.’"
NYSDA has presented FOIL training in the past and has some information about FOIL posted on the website. Attorneys with questions about FOIL are encouraged to contact the Backup Center.
Equitable Estoppel in Paternity Cases Explained
In Matter of Stephen B.J.B v Marcia N.S.C (2025 NY Slip Op 01921 [4/2/2025]), the Second Department offered a great tutorial on how courts and attorneys should analyze an equitable estoppel claim in a paternity case, when an individual seeks to vacate an acknowledgment of paternity. In this Rockland County Family Court case, the father sought to vacate a three-year-old acknowledgment of paternity. The appellant alleged that he signed the acknowledgement based on the mother telling him that he was the biological father, but he subsequently learned that was not true. The court stated in part that “[t]he Family Court erred in summarily denying the appellant's challenge to the acknowledgment of paternity on the basis of equitable estoppel without first conducting a hearing on the issues of whether the acknowledgment was procured by a misrepresentation made by the mother regarding the appellant's paternity and if so, whether the appellant should be estopped from challenging the acknowledgment based upon the best interests of the child.” [Citations omitted]. As a practice note, those petitioning to vacate an acknowledgment of paternity within sixty days of signing have a much simpler task, and do not have to allege fraud, duress, or material mistake of fact (FCA 516-a).The issue of equitable estoppel in paternity cases is a complicated one. Those with questions are encouraged to contact our Family Court Staff Attorney at kbode@nysda.org.
Both Parents are Entitled to a Full and Fair Opportunity to Be Heard at a Custody Hearing
In Matter of Casey Q. v Jeffrey O. (2025 NY Slip Op 01981 [4/3/2025]), the Third Department reversed an original award of sole custody made to the father after the Cortland County Family Court, sua sponte, ended a 12-day custody trial, precluding all further testimony and ordering closing arguments to be made in writing. “Recognizing that this custody proceeding largely turned upon the credibility of the mother and the father, each of whom alleged that the other was an unfit parent, Family Court deprived both parties of a full and fair opportunity to be heard by inexplicably cutting off the father's direct testimony and failing to allow any cross-examination of him. Further, given that the court granted the father sole legal and primary physical custody of the child in the face of the mother's allegations that the father had committed numerous acts of domestic violence, including in front of the child, the court's failure to allow cross-examination of the father deprived it of sufficient information to perform a meaningful best interests analysis.”
Willful Violation of Child Support Order Reversed
In the Matter of Dukofsy v Dukofsky (2025 NY Slip Op 02064 [4/9/2025]), the Second Department held it was reversible error for the family court to find the mother in willful violation of her order of support when she presented sufficient evidence to substantiate her claim that she was temporarily unable to work due to a medical condition. The court wrote: “Here, the evidence of the appellant's failure to pay child support as ordered …constituted prima facie evidence of a willful violation, shifting the burden to the appellant to offer competent, credible evidence of her inability to make the required payments. The appellant presented sufficient medical evidence to substantiate her assertion that she was unable to work .… Under the circumstances of this case, the appellant's showing was sufficient to establish that her failure to pay child support was not willful.” [Citations omitted.]
It is best practice to procure and present medical evidence to the court when your client’s defense is that they cannot pay child support because of a medical condition. Defenders are welcome to visit NYSDA’s sample motion bank, where sample subpoenas can be found. Failure of an attorney to present all relevant and available medical evidence to the court can result in a finding of ineffective assistance of counsel (IAC), which is exactly what happened in Matter of McCloskey v Unger (2024 NY Slip Op 05210 [10/23/2024]). We highlighted McCloskey in the Nov. 8th edition of News Picks.
Resources and Support from Regional Immigration Assistance Centers and Others
The Regional Immigration Assistance Centers (RIACs) around New York have been offering publications, training, and case-specific advice to attorneys about the constantly changing immigration landscape. Any lawyer with a client who was born outside the U.S. should talk to a RIAC attorney about the client’s situation.
The April and May issues of the Western New York Regional Immigration Center (WNY RIAC) newsletter provide information that defenders with clients who were born outside the U.S. may find helpful. The April edition includes an article about “harboring” noncitizens who are present in the country without legal status, see 8 USC 1324, and whether the harboring law could affect lawyers with clients out of status. The article notes the lack of clarity as to what constitutes "harboring.” Lawyers are cautioned against interfering with Immigration and Customs Enforcement (ICE) actions. Lawyers are advised to tell their clients their rights, and, if witnessing an ICE arrest, take down the officers’ names and relevant details.
The May newsletter contains brief points on the current requirement for certain noncitizens to register. Another article in the newsletter should be of interest to defenders in locations with colleges or universities attended by international students. It describes a new enforcement policy—terminating students’ status if they have any contact with law enforcement. The newsletter also reports that the federal government has sued the City of Rochester regarding its sanctuary policies.
The National Immigration Law Center has several timely resources on its website, including “How to Find a Loved One After a U.S. Immigration Arrest” and “Know Your Rights: Trump’s Registration Requirement for Immigrants.” And the We Have Rights empowerment campaign is a good resource for community members.
DOCCS Scanning Legal Mail
An April 14th article in the Plattsburgh Press-Republican says, “[t]he state prisons are rolling out a new screening process meant to catch drugs and other contraband smuggled into facilities through legal mail.” According to the article, the Department of Corrections and Community Supervision (DOCCS) announced that it has “entered into a contract for a company to ‘procure, distribute and train staff’ on new mail-scanning technology” that ‘will allow us to screen all legal mail for contraband before it is opened and significantly reduce this ongoing safety concern’ ….” Only after noting long-standing prison staff concerns about the “‘legal mail loophole’” did the article acknowledge that reported incidents involved mail “‘made to look like a legal communication’” that was not. DOCCS announced on April 17th that “the new technology is fully operational at Attica, Franklin, Upstate, Woodbourne and Wyoming Correctional Facilities,” and implementation is in the final stages at Auburn, Cape Vincent, Cayuga, Gouverneur, and Riverview. Commissioner Martuscello is said to have stated that at all facilities without scanners, the interim policy of withholding legal mail deliveries until their origin can be verified will continue. As to legal mail in jails, defenders are probably aware that the State Commission of Correction has granted variances to many local jails, allowing them to “photocopy incoming legal correspondence in the presence of the intended recipient,” as noted in the 2023 Annual Report.
On Corrections1.com, an April 11th item about continuing labor issues noted other subjects as well, including “deployment of legal mail scanners” and an updated visitation policy requiring visitors to submit to body scans for full-contact visits. The policy is posted on the DOCCS website. We have heard that attorneys can go through the alternative screening mechanism and still have full contact visits; attorneys planning client visits may want to contact the facility in advance. We have also heard that additional guidance on legal mail procedures is pending and will be made publicly available once finalized.
Senate and Assembly Committees Hold Hearing on DOCCS; Unacceptable Incarceration Conditions Continue
On Wednesday, May 13th, the Senate Standing Committee on Crime Victims, Crime & Correction and the Assembly Standing Committee on Corrections will hold a joint hearing on the “safety of persons in custody, transparency, and accountability within state correctional facilities.” The hearing will be live streamed on the Senate and Assembly websites and the video will be available for viewing later.
Serious problems inside state prisons and in local jails, noted in the last edition of News Picks and before, continue. Plans to release some people early from the custody of the Department of Corrections and Community Supervision (DOCCS) in view of staffing shortages were announced, as noted by WRGB (CBS6Albany.com) and others on April 1st. Unsurprisingly, some politicians objected, as reported on PressRepublican.com and in at least one tweet on X. Some are also calling for the rehiring of DOCCS officers who were fired after participating in the illegal strike—see the op-ed of April 9th in the Times Union and a News10.com article on April 11th. As noted above, the recently-enacted budget allows the Governor to close up to three prisons in the next year. As expected, there has been opposition to closures, emphasizing negative economic impact on communities in which prisons are located. This, and the history of prisons as supposed economic engines for upstate communities, was addressed in a March 30th article on NorthCountryRadio.org.
Outrage continues over the deaths of several people in DOCCS, from the pre-strike death of Robert Brooks at the hands DOCCS employees in December, to the similar killing of Messiah Nantwi, to deaths attributed to medical and other neglect stemming from the strike. The indictment of 10 correctional officers for the beating death of Nantwi was announced on April 15th. The Times Union published an editorial on April 22nd that invoked the Easter season and questioned the DOCCS leadership. Formerly incarcerated people continue to demand change. See, for example, Victor Pate’s April 3rd letter on Syracuse.com. See also comments by Matthew Raymond, published on April 7th on TheCity.NYC, following the settlement of the lawsuit he brought based on DOCCS officers’ 2016 attack on him. An April 14th post on WXIInews.org that recounted several key prison issues going forward included in its list, though briefly and at the end, the promised external review that the Governor ordered following Robert Brooks’ murder. It also listed consideration of the HALT Act that curtails use of solitary confinement, with a note that “a growing number of corrections officers have broken from the original rallying cry to repeal HALT, and instead voiced support for keeping some sort of limitations to solitary confinement.”
The DOCCS strike and related issues have resulted in delayed transfer of convicted individuals from local jails to DOCCS custody; this was discussed by Chief Defenders at NYSDA’s March 28th Convening. Resulting problems in local jails have been noted; see the Times Union on April 1st and SpectrumLocalNews.com on April 10th. Preparations to reopen closed jail space on New York City’s Rikers Island to hold this “state ready” population were reported by TheCity.NYC on April 3rd; the Daily News had said on March 12th that transfer of 344 people into DOCCS custody was being delayed “until at least March 31” due to the strike. In early May, Spectrum1 reported that transfers of people in local jails awaiting state incarceration had begun. With a backlog of about 2,000 people, which continues to grow, the process could take months.
Jail populations are affected by other policies and problems too. One worry is that, as federal detention of immigrants increases, local jails will fill beyond capacity, worsening conditions for everyone. See this blog post, “ICE Come to Broome County.” An already-existing problem, as Gothamist.org reported on April 7th, is that as “[j]udges are finding a growing number of criminal defendants in New York City’s state courts mentally unfit to stand trial, … hospitals where the defendants are supposed to go for treatment can’t keep up with the increasing demand” and the people found to lack competency remain in jail. One proposal to address this “would allow local jails like Rikers Island to treat criminal defendants until their mental health has improved enough that they can face their charges in court.” Advocates are pushing back on this, noting problems at Rikers including violence and use of solitary confinement; as one noted in the Gothamist article, “the default should be to treat people in the community, instead of sending everyone to secure state hospitals, which are more expensive and restrictive.”
One advocate’s op-ed in the Mississippi Free Press called out the useless rhetoric and token acts that masquerade as prison reform: “If we were serious about prison reform, we’d do more than close a few facilities or reword a few job descriptions. We’d staff our prisons with trauma-informed providers. We’d enforce the ADA with the same vigor we enforce the rules about commissary. We’d stop treating solitary confinement as a catch-all for medical care. And we’d create real systems of accountability—not internal grievance processes designed to exhaust, delay and ignore. We’d fund advocacy. We’d welcome litigation. And we’d listen when people whisper, not wait until they scream.”
SORA Clients May Be Targeted by Scammers
Alan Rosenthal, whose manual on handling proceedings under the Sex Offender Registration Act (SORA) can be found on NYSDA’s website, has warned that the most recent form of an ongoing scam targeting people on the registry has surfaced in Onondaga County. Someone on the registry was contacted, told that they had missed an appointment required under a new law, and could be charged with failure to register if they did not send $3,000 to cover a new DNA sample.
In late 2023, the National Association for Rational Sexual Offense Laws (NARSOL) had reported that: “[f]or years telephone scams targeting persons registered on their states’ sexual offender lists have plagued registrants in half, possibly more, of our states.” NARSOL went on to say that, after several years of little or no law enforcement effort to address the problem, police had begun issuing warnings about the scams. Just over a year ago, the St. Lawrence County Sheriff’s Office issued a warning about fake “orders of arrest” being sent to people there claiming they were “charged with ‘failure to comply with sex offender registration requirements’” and needed to make a payment to nullify the warrant.
The Onondaga client wisely contacted their attorney and avoided the scam. Defenders with clients on the SORA register are encouraged to tell clients about such scams and warn them to be on guard. And if the scam in any form surfaces in other parts of the state, please share that information with NYSDA as well as local colleagues.
Association News
Contact NYSDA’s Discovery and Forensic Support Unit to Help Guide You Through Your Evidence
Our Discovery and Forensic Support Unit is frequently asked to provide contact information for potential expert witnesses. But did you know that we can schedule a Zoom meeting with you to help you understand your evidence? From cell phone extraction reports to DNA analysis, our staff can help you triage your forensic evidence, identify what is missing from your discovery, provide you with resources to help you gain confidence with your forensic issues, and guide you through your evidence before we refer you to an expert who can do that critical deeper dive. Contact us today at forensics@nysda.org for assistance today!
Upcoming Training
NYSDA’s Discovery and Forensic Support Unit is excited to welcome Professor Andrew Guthrie Ferguson, a nationally recognized expert on predictive policing, big data policing, and emerging surveillance technologies, as a presenter at our upcoming webinar, “AI Analytics and Fourth Amendment Challenges.” You won’t want to miss this free webinar on Wednesday, May 21st from 2:00 to 3:30 pm! Register 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). The program is fully booked, but you can join the waitlist here or you can email training@nysda.org to let us know that you are interested in attending this course the next time it is offered.
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 feature training for criminal and family defenders and defense team members and various networking opportunities. The full conference schedule will be available soon and registration is open through July 3rd. Register today!
Hotel Reservations: Rooms at the Saratoga Hilton are fully booked. We have a non-exhaustive list of alternative accommodations options here.
On-Demand CLE Programming
Recordings of select 2024-2025 training events, including sessions from last year’s Annual Meeting and Conference, are now available for NYSDA members. Please note that you will need to sign into your NYSDA account in order to access the content. Please contact us if you are unsure of your membership status or need assistance with logging in.
If you would like to become a member of our organization, supporting our work and gaining access to the on-demand CLE library, please click here or contact Heather Rapp at hrapp@nysda.org.
Don’t forget to check our Training Calendar to see the list of NYSDA’s upcoming programs.
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