NYSDA and Others Seek to Address the Defender Shortage

It is no secret that nearly every county in the NYS and beyond is struggling with a shortage of qualified defenders to represent litigants in both criminal and family court. The solution to the shortage is less clear. Philip Katz, assigned counsel panel member and partner at Fink & Katz, made a recent plea, in the September 27, 2024, edition of the New York Law Journal,“ our statewide Family Court panels, are in crisis. They are in need of new, experienced practitioners to replace the many who have been retiring in recent years as the numbers of litigants in need of Assigned Counsel services have increased.” 

To help address the defender shortage, NYSDA is proud to announce the creation of our Public Defense Recruitment and Retention Project. The project, being funded by a federal Byrne-JAG grant from the Division of Criminal Justice Services, is intended to help public defense across the state; it will be establishing a coordinated, structural effort to recruit, hire, train, and develop current and future generations of public defenders and public defense team members. Isabelle Ramos is the newly hired Director who will lead the project. More information about Isabelle’s extensive experience can be found below in Association News.

Job seekers looking for public defense jobs, both attorneys and other members of the legal team, are encouraged to look at the NYSDA jobs link, located on our website.

New Practice Resource for Attorneys Representing Youth Clients Now Available

Alan Rosenthal’s new practice resource book, A Defense Attorney’s Guide: Representing Adolescents [JO, AO, YO, Retroactive YO, SORA], prepared in cooperation with the Broome County Assigned Counsel Program, has recently been released and is available electronically here. Dedicated to Judge Langston C. McKinney, this essential manual includes historical and practical information helpful to attorneys representing young people to ensure that the circumstances of their lives and cases are examined through the lens of their age, maturity (or predictable lack thereof), family and community foundations, and ultimately the applicable law designed to recognize and treat youth in the justice system in accordance with their age and relative accountability.

In his introduction, Mr. Rosenthal writes,

“This guide for defense attorneys addresses selected issues regarding the defense of adolescents. Whether removal, sentencing, youthful offender, retroactive youthful offender, or SORA, the issues all have one thing in common: It is critical that the defense team and the judge recognize that adolescents are different from adults. To accomplish this, it is suggested that you take a developmental approach… In taking a developmental approach, defense counsel must first educate themselves about the pertinent science and research. The next step is to educate the judge. Your challenge is to interest the judge in having a full picture of what was behind your client’s offense, and what services are necessary to reduce your client’s risk of reoffending and to promote his or her successful and productive reentry and reintegration into society. To prevent the judge from defining your client by his or her offense, you will want to present the many developmental and historical factors, including trauma and disabilities, contributing to the criminal behavior.”

The book cites the United States Supreme Court decision in Roper v. Simmons, 543 U.S. 551 (2005), as the turning point "return to a rehabilitative model for adolescents and a departure from the retributive model that was in use for the three decades prior,” and New York’s adoption of the developmental approach regarding adolescents by the Court of Appeals in People v. Rudolph, 21 N.Y.3d 497 (2013).

The new guide also provides a chapter on the application of SORA rules as they apply to adolescents. It reiterates the importance of awareness and advocacy related to the age and development of a young client and the detrimental impact lifetime stigma may cause. Mr. Rosenthal’s earlier invaluable practice handbook, Defending Against the New Scarlet Letter, A Defense Attorney’s Guide to SORA Proceedings (2d Ed), is available as a potential companion resource in electronic form here.

For more information and resources on representing youth clients in the criminal and family courts, contact the Backup Center at info@nysda.org, or call 518-465-3524.

Prosecutor’s Consent Not Necessary to Remove Adolescent Offender’s Weapons Charge to Family Court

In late August, a good decision came out of Schenectady County in regards to a District Attorney seeking to prevent removal of an adolescent offender’s felony complaints to family court.

In People v J.R., the DA argued that the alleged facts of the case - criminal possession of a weapon in proximity to a school - barred removal of the case to family court without their consent. That position would require CPL 722.23(1)’s language on automatic removal to require a factual analysis of the complaint before interpretation of its plain language, an argument the court rejects. Reading 722.23(1) as it stands, the court held that the weapons charge itself (PL 265.02) is what matters for a removal analysis, not any additional facts only present in the complaint and not a factual element of the charge (the proximity to school grounds). The court concludes that “[a]s ‘violent felonies’ fall within the ambit of the statute, neither of the charges necessarily require the People's consent for the instant case to go to family court.”

While the statutory mechanisms of Raise the Age are complex, across the state we’ve seen prosecutors continually make incoherent - and often bad faith - arguments to keep cases in adult courts. If you ever need assistance in navigating a case with a client who is marked as a Juvenile or Adolescent Offender, please don’t hesitate to contact the Backup Center.

CAL’s Most Recent Court of Appeals Update Available

The Center for Appellate Litigation (CAL) has released the September 2024 edition of its Court of Appeals Newsletter. The publication identifies significant criminal appeals pending before the state’s high court, helping defense attorneys stay up to date on important legal issues currently in play.

Among the many issues awaiting decision are the timeliness of a forensic examination of a cell phone (10 days after a warrant was issued); use by the prosecution of a pro se defendant’s trial preparation communications from jail; whether consecutive sentences were properly imposed for second-degree forgery and third-degree grand larceny when the forgery was the method used to commit the larceny; whether a confidential informant’s testimony about a drug sale that preceded execution of a search warrant and the defendant’s arrest was improperly admitted; the proper standard for appellate review of a claim that a conviction was against the weight of the evidence; and the constitutionality of certain convictions in light of New York State Rifle & Pistol Ass’n Inc. v Bruen.

Issues in cases awaiting argument include ineffective assistance of appellate counsel; constitutional confrontation issues regarding a co-defendant’s testimonial statement; reasonable suspicion to stop and frisk a defendant; abuse of discretion in a determining a SORA reclassification modification; denial of a justification instruction in a shooting case where initial shots were justified but fatal shots struck the decedent in the back; whether the “in writing” requirement applied to a mid-trial motion to dismiss argued orally; and limits on expert testimony regarding factors affecting the reliability of eyewitness identification.

CAL’s update also notes issues in the many cases waiting to be scheduled and in cases newly granted leave to appeal. As always, NYSDA thanks CAL for sharing this resource, prepared for in-house legal staff, with the public defense community. CAL posts these Court of Appeals updates, along with other resources such as the publication Issues to Develop at Trial, on its webpage For the Legal Community. Again, thank you CAL!

Facial Recognition Technology Used More Broadly Than Police Disclose Publicly

The Washington Post recently published findings of its efforts to obtain information about police use of facial recognition software to varying results across states. Of the 100 police departments the Washington Post surveyed who acknowledged the use of facial recognition software publicly, only 30 provided arrest records while the remainder attested that they use the software “to identify potential leads” but do not rely on it as a sole method of arrest so they were not required to disclose its use. Police will often employ the phrase “investigative means” or using “investigative databases” as code for using facial recognition software. We have seen this common phrase in the past to describe reliance on new technologies, including forensic investigative genetic genealogy. 

The Washington Post uncovered a key clause in many Clearview contracts: “‘search results produced by the Clearview app are not intended nor permitted to be used as admissible evidence in a court of law or any court filing.’” The investigation also uncovered that in Miami, Florida, police use the technology, are instructed not to record that they use it during investigations, and often do not inform the prosecutors’ offices that they use facial recognition technology.

At least seven innocent Americans have been wrongfully arrested in cases where police use facial recognition software and six of these individuals were Black. While some discovered the use of this software during interrogations, others only discovered this in passing when police referenced a computer that found them or made a “positive match.” A noteworthy case comes from a New Jersey appellate court. After spending years incarcerated pre-trial, Defendant-Appellant Arteaga pleaded guilty to a crime he did not commit even after succeeding on appeal. In his case, the New York Police Department’s Real Time Crime Center used facial recognition technology after New Jersey detectives sent the NYPD raw footage. The police department initiated a fishing expedition in New York after analysis at the New Jersey Regional Operations Intelligence Center yielded no matches. Instead of providing a clearer image to the New Jersey agency as recommended by the Regional Operations Intelligence Center, New Jersey police went through the NYPD’s Real Time Crime Center to obtain a “possible match.” Ultimately, the appellate court reversed the lower court’s holding, compelling the State to provide Brady evidence related to the facial recognition technology used. There, the Court held that Arteaga was entitled to these discovery materials from the NYPD entity directly from the State and not required to subpoena them himself. The burden laid with the State because “FRT is novel and untested, and the possibility that errors in the technology may exculpate defendant” State v Arteaga, 476 NJ Super 36, 57 (Sup Ct NJ, App Div 2023).

To provide an example of how inaccurate and untrustworthy facial recognition software can be, the Washington Post recounted that in one instance Clearview AI “search results produced as evidence in one Cuyahoga County, Ohio, assault case included a photo of basketball legend Michael Jordan and a cartoon of a Black man.” Research and software testing at National Institute of Standards and Technology (NIST) has revealed that facial recognition technology misidentifies women, people of color, and the elderly more often than other demographics because these individuals appear less frequently in the data used to train the algorithms in the software.

Child Support Law Modified to Consider Specific Circumstances of Parent

Family Court Act 413, which relates to establishing and modifying child support orders, has been changed to conform to federal regulations (45 C.F.R. § 302.56). Pursuant to Chapter 357 of the Laws of 2024, which took effect on September 24, 2024, when attributing or imputing income, the court must consider the specific circumstances of the parent, including but not limited to employment and earning history, educational attainment, literacy, health, criminal record, and employment barriers. “Attribution or imputation of income shall be accompanied by specific written findings identifying the basis or bases for such determination utilizing factors required or permitted to be considered…”. Additionally, when a party has defaulted, rather than basing the order of support on the needs of the child, the order will now be based on the specific circumstances of the parent. Finally, incarceration shall not be considered voluntary unemployment, without exception. The full text of the new law can be found here. Those with questions related to this or any other family court-related questions can email our family court staff attorney at kbode@nysda.org. 

Hevesi Chairs Hearing on the Need for SCR Reform

The NYS Assembly Standing Committee on Children and Families held a hearing on October 9th “[t]o examine the administration of the Statewide Central Register of Child Abuse and Maltreatment [SCR].” The 5 1/2-hour hearing, held in Albany, and chaired by Assemblymember Hevesi, heard testimony from impacted parents, family advocacy groups, and family court public defense organizations about the devastating effect that reports to the SCR have on Black, brown, and poor families. One of the impacted parents who testified spoke about how she had to remove her doorbell because her children were so traumatized by the sound of a ringing bell, because of the countless times that ACS knocked on her door as a result of a malicious call to the SCR, all unfounded. As reported by Spectrum News, Hevesi stated that "’CPS can knock on your door at any time,’ … "When they come in, they can demand access to your kids, including strip searching the kids [and] have the kids take their clothes off to see if there's abuse. They're allowed to do that.’" It was also reported at the hearing that 80 percent of the reports made to the SCR come back as unfounded. Hevesi announced that he would be introducing new legislation to reform the SCR. He is also the assembly sponsor of the anti-harassment reporting bill that would ban anonymous reporting to the SCR, in favor of confidential reporting. The full recording of the hearing can be found here.

Rolling Stone Highlights the Problem of Race and Poverty-based Neglect

A year-long investigation conducted by Rolling Stone magazine concluded that “across the country, tens of thousands of mothers… are coming under scrutiny because of marijuana use. Whether based on hearsay or urine toxicology tests often done without maternal consent, reports of marijuana use are triggering notifications to child protective services. Family investigations — and separations — follow. Black mothers have been particularly vulnerable....” The item featured in the Sept. 22^nd edition of Rolling Stone, highlighted the stories of women who had their children away because of “weed” use. It also addresses the studies that point to conflicting evidence about the adverse effects of THC on newborns, compared to the evidence of the long-term adverse health effects on newborns being separated from their parents. Some of those reported long-term health effects of separation include higher rates of developmental delay, mental illness, depression, and suicidality. Rates of unemployment, truancy, and incarceration are also reported to be higher.

As part of the article, several outspoken advocates of systemic reform were interviewed, including Miriam Mack, Policy Director at Bronx Defenders, Erin Miles Cloud, senior attorney at Civil Rights, Corps in Washington D.C., Alan Dettlaff, a former child welfare worker and previous dean of University of Houston’s Graduate College of Social Work. Defenders are encouraged to read this item in its entirety, as it may help you formulate defenses against neglect proceedings, especially if your client is targeted because of race and poverty. The full article can be found here.

New York Focus Details Broken Board of Parole System

In September, New York Focus ran two articles dissecting the state’s Board of Parole. Their conclusion was grim: “A roughly two-year political window of criminal justice reform in New York — characterized by bail, prosecution, and police transparency legislation, as well as mass protests against policing — has come and gone, with the parole system left mostly untouched.”

Part of the issue is that the board itself is understaffed; the governor claimed she would prioritize filling the board’s 19 seats when she was elected in 2022, but “three of Hochul’s seven known parole board nominations have crashed and burned.” Two of those seven were rejected by “reform-minded senators,” and the third "made it through Senate confirmation, only to be ousted before he completed training for allegedly skipping and falling asleep at hearings.” Of the Board’s 16 current members, 11 are “zombie commissioners” who serving on expired terms (with three of those zombies’ terms expiring over five years ago). Ultimately, “[t[hirty-three months, four successful nominations, and three failures after Hochul promised to fully staff the Board of Parole, it remains three commissioners down.”

The outlet also ran an interview with Carol Shapiro, who served on the Board from 2017 to 2019. Shapiro speaks persuasively about the demographics of the state’s incarcerated population - “[o]ur prisons in New York state have become geriatric facilities” - and the social science literature that suggests this population is at a very low likelihood of reoffending. The presumption of their continued detention for Shapiro is then “not [for] the safety of our communities. It is punishment, and it’s perpetual punishment.” As far as how incarcerated individuals perceive the system, Shapiro concludes “[t]hey see the parole system for what it is: It’s a sham. You get rejected in spite of doing everything you can to have changed your life around… It doesn’t feel like a legitimate part of our justice system.”

Removal Proceedings in DOCCS and More Discussed in WNY RIAC Newsletter

The October issue of the Western New York Regional Immigration Center (WNY RIAC) includes information about the Institutional Hearing Program (IHP) that allows immigration judges to conduct removal hearings regarding people in the custody of the Department of Corrections and Community Supervision (DOCCS). Correction Law 147 directs the Commissioner of DOCCS to investigate the “record and past history” of incarcerated individuals who are not U.S. citizens and, within three months of such individuals’ admission to a DOCCS facility, to forward the record, investigation results, and recommendations as to deportation to immigration authorities. The newsletter notes that clients in DOCCS may be asked about their background and immigration status, and may be questioned by Immigration and Customs Enforcement (ICE) agents, but have the right to refuse to answer questions or sign paperwork about their status. They also have a right to representation if they can obtain counsel—but no right to government-funded lawyers—at removal hearings. See the newsletter for more detail. Defenders need to provide clients with full information about immigration consequences of conviction (see, e.g., 2021 Revised Standards for Providing Mandated Representation, NYS Bar Association, Standard I-7 [e]).

WNY RIAC and the other RIACs across the state help defenders provide quality representation to noncitizen clients in criminal and family court. A list of RIACs is available on NYSDA’s website as well as on RIAC General Information webpage of the Indigent Legal Services Office.



Franklin H. Williams Judicial Commission Hearings Address Diversification

The Franklin H. Williams Judicial Commission, under its mission to educate and advise NY Court System decision makers “on issues affecting both employees and litigants of color” and to implement recommendations to address such issues, has planned four hearings “about current challenges to jury service and potential jury reforms,” as noted in a press release posted on wnypapers.com September 12th. The first hearing, in the Fourth Department, was held on September 24th. On that same date, CapitolPressroom.org posted a conversation with Court of Appeals Judge Shirley Troutman, co-chair of the Commission, on “the importance of juror diversity and steps that could address the composition of juries.” Troutman stressed that lack of racial diversity on jury panels erodes public trust and confidence in the judicial system.

Possible actions she was asked about included local rules, like a now-defunct administrative order allowing Buffalo City Court to draw jurors only from the city, not the surrounding county. Asked whether the Governor should sign a bill passed by the Legislature to end the permanent ban on jury service for people with felony convictions, Troutman noted she could not “lobby” but thought such a measure would be a good thing. NYSDA supported passage of the Jury of Our Peers bill, S.206-B/A.1432-C, stressing these points: Increasing Civil Participation in the Jury Process and Diversifying Juries Help Improve Jury Diversity; Civic Participation Facilitates Reintegration into Society; and New Yorkers Should Be Able to Participate in Jury Service Upon Release, The Same Point in Time When they Are Able to Vote.

Association News

New Staff Announcements at NYSDA

Isabelle Ramos Named the Director of NYSDA’s Newly Created Public Defense Recruitment and Retention Project

We are pleased to announce that Isabelle Ramos has been appointed as the Director of the newly created Public Recruitment and Retention Project. Prior to joining NYSDA, Isabelle was the director of the Pre-Law program at Montclair State University, where she assisted students and alumni prepare for the law school admission process. Before that, Isabelle was an ambassador and assistant director for diversity initiatives at the Law School Admission Council. She also served as an assistant director for admissions at Cornell Law School and worked in admissions at Ithaca College and Wells College. Isabelle is a graduate of Wells College and Northeastern University School of Law. We are thrilled to have Isabelle lead this project as we work with offices to develop solutions to the public defender shortage.

New Law Grad Joins NYSDA’s Discovery and Forensic Support Unit

We are happy to announce that Martin Berg has joined NYSDA’s Discovery and Forensic Unit. Martin is not new to the public defense world. He has been working with public defenders since 2019, specializing in processing digital forensic evidence, particularly cell site location information. Martin previously served as a legal intern with the Georgia Capital Defender Office, the Dekalb Public Defender Office, and the Georgia Public Defender Council in Fulton. He earned a B.A. in Mechanical Engineering and Religious Studies at Rice University. This year he took home a championship victory at the John L. Costello National Criminal Law Mock Trial Competition. Martin graduated from Emory Law in May and took the New York Bar exam this summer. We are thrilled to have Martin working with us at NYSDA and wish him the best of luck as he awaits the results of the Bar Exam.

Selina McJury Joins NYSDA’s Veterans Defense Program

We are happy to announce that Selina McJury has joined the VDP team as a part-time administrative assistant. She comes to us from Creamy Creation LLC where she worked for 25 years in various capacities, including coordinating large-scale international events. She will primarily be working on the VDP’s grant project from the NY Health Foundation. She is excited to learn about Veteran Treatment Courts and assist in making sure all justice involved veterans in NYS have access to VTCs.

New Issue of the Public Defense Backup Center REPORT Published.

The July-September issue of NYSDA’s newsletter, the Public Defense Backup Center REPORT, is available on the NYSDA website. NYSDA members will receive their hard copy of the issue when printing and mailing are completed. If you have questions, please contact the Backup Center at info@nysda.org or 518-465-3524.

Upcoming Training

Thursday, October 17, 2024, 1:00 – 2:00 pm, Informational Webinar on the Clean Slate Act

NYSDA will be hosting a free informational session on the Clean Slate Act by the NYS Division of Criminal Justice Services (DCJS) and the NYS Office of Court Administration (OCA). DCJS and OCA will provide an overview of the Clean Slate legislation and implementation of the law. No CLE credit will be offered for this program. For more information and to register, click here.

Family Defender Article 6 Custody Lunchtime Training Series for Parent Attorneys

This free four-part webinar series 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 Alexandra J. Buckley, Mark Funk, William King, Shaina Kovalsky, Seana Sartori, and Lisa Shoenfeld. See program and registration information below.

• Friday, October 18, 2024, 1:00 – 2:30 pm, Extraordinary Circumstances: What You Need to Know About Non-Parent Custody Filings. For more information and to register, click here.
• 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.

Friday, October 25, 2024, 1:00-2:30, Reimagining Family Defense: Policy Reform in the Family Courts

This free webinar will provide an update on what work is being conducted on a systemic level to effectuate change in the family regulatory system. It will include an overview of the family court bills that were introduced last session, and their status. There will be a discussion of how the proposed bills would affect family defense practice. Among the bills to be discussed are the “ACD” and the Preserving Family Bonds bills. There will be an opportunity for Q&A and discussion, as well as information on how individual attorneys can join the coalition. The presenters will be from the amazing policy teams of The Bronx Defenders, Center for Family Representation, and Brooklyn Defender Services. For more information and to register, click here.

Thursday, November 7, 2024, to Saturday, November 9, 2024, Practical DWI Detection and Standardized Field Sobriety Testing (SFST) Instruction Course, Albany

This intensive in-person program is a must for defenders representing clients in DWI cases. There are limited spots available, and a minimum number of participants is required. Those interested in attending are encouraged to register ASAP. All attendees will receive a copy of the NHTSA Standardized Field Sobriety Testing Manual. The presenters are Jonathan D. Cohn, Partner, Gerstenzang, Sills, Cohn, & Gerstenzang, and John R. Sandle, Owner & Chief Investigator, Sand Investigations. The registration deadline is October 3rd. For more information and to register, click here.

Wednesday, November 15, 2024, 1:00 – 3:00 pm, Discovery from the Defense: Ethics and Key Questions

This is a free Webinar that will be presented by John Schoeffel from the Criminal Defense Practice, Legal Aid Society. The presentation will be followed by a Q&A, in which attendees will be able to ask Mr. Schoeffel questions related to discovery. Participants will earn CLE credits in ethics. For more information and to register, click here.

Thursday, November 21st, 2024, SAVE THE DATE: All day in person Investigations training in NYC This all day training, presented by NYSDA and The Legal Aid Society of New York City, 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. Details and Registration Coming Soon.