2nd Circuit Expands Padilla to Naturalized Citizens

The Second Circuit has held en banc “that the Sixth Amendment entitles a naturalized U.S. citizen facing the risk of deportation following denaturalization to no less protection than a noncitizen facing the risk of deportation.” Farhane v United States, No. 20-1666 (10/31/2024). In extending the protections of Padilla v Kentucky, 559 US 356 (3/31/2010), the court recognized that “[d]eportation following denaturalization proceedings is a severe, adverse immigration consequence ….” Quoting a 1964 case, Farhane pointed out that, “aside from the Constitution’s requirement that only natural-born citizens are eligible to be President, a naturalized citizen ‘possess[es] all the rights of a native citizen, and stand[s], in the view of the constitution, on the footing of a native.’” The court concluded that “criminal defense attorneys have a Sixth Amendment obligation to inquire into and advise a naturalized citizen client of any risk of deportation following denaturalization proceedings that accompany the client’s guilty plea, just as they do for a deportation risk facing a noncitizen client.” Two concurring opinions and three dissents were filed.

The Second Circuit's decision came less than a week before the presidential election. A month ago, Donald Trump's former policy advisor, Stephen Miller, who was responsible for immigration policy under the Trump administration, tweeted  in October that "we started a new denaturalization project under Trump. In 2025, expect it to be turbocharged." The Western New York Regional Immigration Assistance Center issued a helpful advisory on the decision. Defenders will need to ensure that they determine whether clients who are U.S. citizens are naturalized and therefore subject to denaturalization and deportation under some circumstances. As always, NYSDA reminds defenders to reach out to the appropriate Regional Immigration Assistance Center (RIAC) whenever a client might face immigration consequences. RIACS are listed on NYSDA’s immigration resources page and the Office of Indigent Legal Services’ RIAC General information page.

Latest WNY RIAC Newsletter Focuses on DWI/DWAI Pleas

The November newsletter of the Western New York RIAC focuses on how immigration status can be affected by charges of driving while intoxicated or while ability impaired. Among the many points made is that “[t]he failure to disclose an arrest in an immigration application may be deemed a willful failure to disclose a material fact, and lead to the denial of immigration benefits, including naturalization.” This is particularly timely given current naturalization/denaturization headlines.

The newsletter also contains information on the Rape is Rape Act. The headline notes that the Act “Redefines Criminal Liability and Alters Deportation Implications.” As always, NYSDA thanks the WNY RIAC for sharing this resource!

New State Gun Legislation Signed

The Governor signed a package of new gun laws in early October, as announced in a media release and reported on SpectrumLocalNews.com. Two of the new laws deal with enforcement of “red flag” provisions that allow courts to prohibit gun access by certain individuals through the use of an Extreme Risk Protection Order (ERPO). One, Chapter 425 (effective Oct. 9, 2024), allows police agencies rather than individual officers to be listed as petitioners in ERPO proceedings. The other, Chapter 427 (effective February 6, 2025), requires judges to notify the statewide registry of orders of protection and warrants, established pursuant to Executive Law 221-a, when an ERPO is issued (or revoked). Other bills amended the Penal Law, Executive Law, and General Business Law. There are provisions requiring firearms dealers to provide warnings about the dangers of having guns accessible in homes (Chapter 428); adding “reasonable steps to prevent the installation and use of a pistol converter” to existing law and adding a definition of “pistol converter” to Penal Law 265.00 (Chapter 429); requiring “payment card networks” to provide merchant category-codes for firearms and ammunition businesses (Chapter 430); and directing firearms licensing officers to provide information about safe storage of firearms and related matters when issuing a license and requiring DCJS to develop and implement a public awareness campaign on that topic (Chapter 432).

Federal Courts Issue Second Amendment Decisions

A federal district judge has enjoined enforcement of Penal Law 265.01-d, a provision of New York’s gun laws. The defendants in the case, the State Police and the Erie County District Attorney, may not charge people who have a permit for concealed carry of a firearm for bringing their weapon onto private property that is open to the public and has no posted signage allowing such weapons. The decision was reported in the Times Union on October 15th. The lengthy summary judgment decision says near its beginning that “[a]t least as to private property open to the public …, New York’s restriction is unconstitutional--a result dictated by the teaching of the Supreme Court’s recent cases addressing individual Americans’ right to keep and bear arms.” Christian et al v James et al, No. 22-CV-695 (JLS), 2024 WL 4458385 (WDNY 10/10/2024). Property owners do have the right to exclude those carrying weapons, the decision says, but the State is more limited. Historical enactments relied on by New York to justify its current prohibition were rejected as “not ‘analogous enough’” to the challenged restriction “to ‘pass constitutional muster’” under New York State Rifle & Pistol Ass’n Inc. v Bruen (597 US 1 [6/23/2021]).

A separate issue, New York’s restrictions as to carrying firearms in public parks, was held in abeyance. The decision was noted, among other places, on msn.com, in an article in the Queens Chronicle, which reported that the NYS Attorney General is reviewing the decision to decide whether to appeal, and on NorthCountryNow.com, which said that since Bruen, “many gun rights organizations have … launched lawsuits against state lawmakers, arguing laws passed to ban ‘assault rifles’ and high capacity magazines, among others, violate the 2nd Amendment.”

The Second Circuit recently issued a Second Amendment decision covering a number of cases and issues after remand by the U.S. Supreme Court. An article on NYStateOfPolitics.com said that in Antonyuk v James (Nos. 22-2908[L], 22-2072[Con] [10/24/2024]), the court “largely upheld portions of New York’s gun laws that say firearms can be barred in areas deemed sensitive like schools, public transportation and hospitals,” and “again rejected a gun ban on private properties that are held open to the general public, like grocery stores and gas stations.” An item on www.News10.com briefly listed several aspects of the latest, nearly 250-page, opinion in Antonyuk and related cases.

NYSDA has sought to keep defenders abreast of rulings on and constitutional challenges to the State’s gun laws in the wake of Bruen. A CLE presentation on Oct. 4, 2024, included summaries of Court of Appeals cases raising Bruen issues found to be unpreserved. The April-June issue of the Backup Center REPORT noted Bruen developments, including the decision in United States v Rahimi (No. 22-915 [6/21/2024]) allowing regulations prohibiting firearm possession by individuals subject to a domestic violence restraining order based on certain findings. An edition of the Center for Appellate Litigation (CAL) publication, Issues to Develop at Trial (Bruen series), was noted in the July 1st edition of News Picks. The inclusion of cases raising Bruen issues in the September 2024 edition of CAL’s Court of Appeals Newsletter was pointed out in the October 11th News Picks. Defenders dealing with issues relating to criminal charges involving gun possession are invited to share information and questions with the Backup Center.

An historical law quoted in Christian contains a racial component. The decision in Christian quotes from a 1763 New York law that was among those the State offered to justify the post-Bruen limitation on carrying guns on private property absent owner consent. The language of the cited statute is a jarring reminder that racial discrimination has been openly included in New York’s laws. In 1763, those who were allowed to carry guns and hunt on certain land in New York City without prior written permission were the people who controlled that land and their white servants. The corrosive effect of seeing this discriminatory provision in a law being analyzed in a current ruling should not be ignored.

Child Support Willful Finding Reversed for IAC

The Second Department recently offered an important reminder about the right to a meaningful defense in a child support violation case. In Matter of McCloskey v Unger (2024 NY Slip Op 05210 [10/23/2024]), the court reversed an order of disposition that found that the father willfully violated his order of child support based on ineffective assistance of counsel. The Appellate Division, concluding that the father was denied “meaningful representation,” found notable that “the father’s counsel failed to procure certified copies of the father’s medical records or records establishing his entitlement to and receipt of public assistance. Moreover, the father’s counsel failed to call any witnesses to testify regarding the father’s neuropathy, to subpoena the father’s treating physician, or to obtain a medical affidavit from the father’s physician.”

NYSDA’s family defense motion practice page contains sample subpoenas and a business records certification for attorneys who need to obtain their client’s certified medical records. At a minimum, in any child support case, Family Court Act 424-a requires a respondent to submit to the court a sworn financial disclosure affidavit, along with any supporting financial documentation including but not limited to paystubs, tax returns, proof of public assistance, or disability payments. Attorneys are encouraged to contact our Family Court Staff Attorney Kim Bode with questions related to any type of family court case at kbode@nysda.org.

Appellate Courts Sometimes Consider Evidence Outside the Record in Family Court Cases

It is well settled that on appeal the court cannot consider any evidence that was not in the trial record, but there is an exception to this general rule in certain cases. Appellate attorney Cynthia Feathers discussed one of these Family Court exceptions in a recent New York Law Journal article entitled, “Vital Child Custody Appeals Rule Expanded.” Feathers explained that an “exception has been carved out for cases involving the best interests of children in custody proceedings. First enunciated in Matter of Michael B., 80 NY2d 299, 317-318 (1992), this narrow exception has been applied in hundreds of cases since then.” Feathers continued, “The Michael B. factual scenario was atypical, in that it did not involve a custody dispute between parents litigated under Family Ct Act article 6, but instead a battle between the child’s foster parents and his biological father. … However, that decision stands more broadly for how post-developments may be presented upon appeal in typical custody cases.” Defenders are encouraged to read this article in its entirety as it provides information about current caselaw and practice tips. Those with questions are welcome to contact Family Court Staff Attorney Kim Bode at kbode@nysda.org.

Addressing Backlogs: Ensuring Speedy Trial Rights Shouldn’t Violate Others

A NYS Unified Court System news release dated Oct.10, 2024, “announced a series of innovations in court operations to help expedite the processing of felony cases and reduce unnecessary delays in New York City’s criminal courts, enhancing both fairness and public safety.” Delays in resolution of cases in New York City are to be addressed by measures including scheduling orders at the outset of cases, early resolution of suppression motions, late-stage case conferencing to identify and resolve outstanding issues, and close monitoring of case via a citywide calendaring system. The changes are to be piloted in Brooklyn, and then tailored to the needs of the other four boroughs for implementation early next year. The inhumane and deadly conditions on Rikers Island, and the need to reduce the number of people held there pretrial so that measures to close the facilities can proceed, were the major themes of the announcement. The changes were noted in an article on Law.com.

A long list of official luminaries and justice advocates were quoted in the release as supporting the announced procedures. Funding and resources for the defense must be ensured, and no actions “taken that push efficiency over what is in the best interest and constitutional rights of the people accused,” said Tina Luongo of The Legal Aid Society. Similar notes of support for the initiative coupled with insistence on fairness were expressed by other defenders and justice advocates.

That emphasis on fairness is welcome and necessary, as pushes to end backlogs can threaten other rights. As noted in the New York State Association of Criminal Defense Lawyers (NYSACDL) 2021 report on the “trial penalty”—the harsher sentences nearly always imposed on those who proceed to trial rather than pleading guilty—judicial efforts to reduce case backlogs can contribute to the problem. “Numerous defense attorneys cited specifically the ‘standards and goals’ under the Excellence Initiative [a prior judicial effort to reduce backlogs] as a factor contributing to the trial penalty,” that report said.

As the measures addressing the NYC backlog were being announced, an op-ed on amNY.com by the Attorney General and two legislators called for addressing delays (in both criminal and civil court) in another way. They support lifting the State Constitution’s cap on the number of State Supreme Court judges. The cap, they noted, was created in 1846 and last increased in “the early 1960s, when there were a third of the cases that exist today.”

NYSDA encourages defenders to contact the Backup Center with questions or information about implementation of the new measures in New York City, any spillover noted in the rest of the state, and other backlog-related issues.

BPDA Launches Wellness Series for Black Defenders

The Black Public Defender Association (BPDA) has announced “a free wellness series to help Black defenders sustain their energy, passion and effectiveness in a demanding field.” The next session is scheduled for November 18th and future dates are expected to be announced soon.

Public defense work is stressful. And Black defenders face unique challenges in addition to those experienced by everyone in the field. A mental health resource for public defenders generally, Jenny Andrews’ Sustaining Well Being in Public Defense, includes a quote from a 2021 tweet by Keeda Hayes. It notes that Black defenders “don’t have the luxury to pick up and put down the issues we see everyday in the courtroom like so many of our other coworkers do.” Hayes urged, “[l]et’s start having those conversations & support our Black PDs & criminal defense attorney.” BPDA, a section of the National Legal Aid and Defender Association, has taken this on.

NYSDA has included links to general items on Racism and Health (Physical and Mental) on its Racial Justice and Equity webpage. We welcome new information, including information for and about defenders, that could be added there. Email info@nysda.org.

Association News

Veterans Day Reminder: Consult with the VDP about Veteran Clients

Veterans Day can serve as a reminder to defenders to recognize every day that veteran status may play a role in the lives and cases of clients who have served. Because not all veterans identify themselves by that term, clients should be asked if they ever served in the military to determine if they may be a veteran and open a conversation about possible effects that their service had on them.

NYSDA’s Veterans Defense Program (VDP) offers services supporting military cultural competence and promoting trauma-informed and client-centered representation of veterans and service members who are involved in New York State’s criminal and family court system. The VDP is available to assist defenders representing veterans and military members in criminal and family court. Reach out via email (VDPInfo@nysda.org), the VDP contact form, or phone at 585-219-4862.

The VDP and NYSDA as a whole would like to thank all the defenders who are veterans themselves for their service and sacrifice.  

Upcoming Training

Family Defender Article 6 Custody Lunchtime Training Series for Parent Attorneys

There are three webinars remaining in this webinar series. They will cover some of the most intricate topics encountered by family defense attorneys in Family Court Act Article 6 cases. Our presenters are well-respected and experienced family court attorneys from around the state, including Mark Funk (Monroe County Assigned Counsel Administrator), William King (Monroe County Public Defender’s Office), Shaina Kovalsky (Monroe County Conflict Defender’s Office), Seana Sartori (Monroe County Public Defender’s Office), and Lisa Shoenfeld (Schlissel Ostrow Karabatos, PLLC). See program and registration information below.

• Thursday, November 14, 2024, 1:00 – 2:30 pm, Best Interests: What Is It? How Do You Prove It? For more information and to register, click here.
• Thursday, December 5, 2024, 1:00 – 2:30 pm, The A to Z of Article 6 Custody Relocation. For more information and to register, click here.
• Friday, January 24, 2025, 1:00 – 2:30 pm, Venue and Jurisdictional Issues in Custody Cases. For more information and to register, click here.

Wednesday, November 15, 2024, 1:00 – 3:00 pm, Discovery from the Defense: Ethics and Key Question. This is a free webinar presented by John Schoeffel from The Legal Aid Society’s Criminal Defense Practice. For more information and to register, click here.

Thursday, November 21, 2024, Investigations Training This all-day training, presented by NYSDA and The Legal Aid Society, will be held at The Legal Aid Society’s Training and Advocacy Center, 55 Water Street, 36th Floor, NY, NY. This program is open to investigators, attorneys, and defense team members. The cost to attend is: $90/person (individual), $75/person (offices registering groups of 3 or more). For more information and to register, click here.