Several Relevant Discovery Cases from NYSDA’s Discovery & Forensic Support Unit

In People v Johnson, 218 AD3d 1347 (4th Dept 7/28/2023), the Fourth Department decided that a “defendant was not automatically entitled to the entirety of a police officer’s personnel file ... rather only to the extent that the information ‘relate[d] to the subject matter of the case’ ….” This 4th Department holding differs from the 2nd Department’s position on the automatic discovery of police misconduct records, as pointed out in People v Dorado, 2023 NY Slip Op 23261 (Crim Ct, Kings Co, 8/25/2023). The Dorado decision mentions the departmental split and cites People v Hamizane, 2023 NY Slip Op 23233 (App Term, 2d Dept 7/13/2023), as currently binding 2nd Department authority, where “with respect to every listed potential police witness, it [is] the People’s obligation to disclose whether or not disciplinary records exist, and to provide the defense with copies of any existing records ….”

In People ex rel Fast v Molina, 2023 NY Slip Op 04641 (2nd Dept 9/18/2023), a writ of habeas corpus was sustained in connection with an application for release pursuant to CPL 30.30(2)(a). The more than 90-day delay was not excludable under the circumstances, where the prosecution attributed the failure to produce the grand jury minutes to court reporter backlog without a demonstration that the timing of production was beyond the prosecution’s control or that they engaged in diligent efforts to produce the outstanding discovery by the trial readiness deadline.

In People v Valdez, 80 Misc 3d 544 (Crim Ct, Kings Co 7/28/2023), the Criminal Court of the City of New York, Kings County, addressed several important issues regarding prosecutorial compliance under CPL 245.20(1) and (2), in finding the prosecution’s certificate of compliance invalid and statement of readiness illusory. The prosecution’s “unexplained delay in failing to provide timely the initial Giglio material, underlying police misconduct of substantiated and unsubstantiated disclosures of 13 officers, unredacted CCRB records, BCI photo and property vouchers was not reasonable.” They failed to show they made reasonable requests to obtain undisclosed materials prior to filing a certificate of compliance. They did not seek a protective order for unauthorized redactions to CCRB records that were disclosed. Nor did the prosecution avail themselves of available remedies under CPL 245.10(1)(a) when materials are exceptionally voluminous or under CPL 245.70(2), which permits the court to modify discovery time periods for good cause shown.

The decision is significant in that it makes clear the prosecution must avail itself of authorized remedies when it cannot comply with discovery requirements, and not unilaterally decide what to disclose and what not to disclose. Moreover, the court makes clear that discovery obligations under CPL 245.20(1)(k) go beyond the requirements under Brady and Giglio, and that all evidence must be disclosed regardless of materiality or credibility. The prosecution’s summaries are not a substitute for discovery obligations to disclose the records themselves. The decision is worth a read for its analysis of what is discoverable when it comes to evidence of police misconduct. However, the decision is an important reminder that timing matters, and what defense must do to notify the prosecution of the deficiencies in the certificate of compliance (COC) and fulfill its own obligations under CPL 245.50(4)(b), and accordingly, the motion to dismiss for speedy trial pursuant to CPL 30.30(1)(b) was denied.

In People v Hernandez, 2023 NY Slip Op 23275 (Crim Court, Bronx Co 9/11/2023), the court held that a complaining witness’s medical records ought to be provided as part of automatic discovery when the prosecution intends to introduce them at trial or at a pre-trial hearing. In support of the proposition, the court cited CPL 245.20(1)(j), which provides that:

“‘All reports, documents, records, data, calculations or writings, including but not limited to preliminary tests and screening results and bench notes and analyses performed or stored electronically, concerning physical or mental examinations, or scientific tests or experiments or comparisons, relating to the criminal action or proceeding which were made by or at the request or direction of a public servant engaged in law enforcement activity, or which were made by a person whom the prosecutor intends to call as a witness at trial or a pre-trial hearing, or which the prosecution intends to introduce at trial or a pre-trial hearing.’” (Emphasis in the court’s decision.)

The court further held that if medical records are not within the prosecution’s control, CPL 245.20(2) “requires the prosecution to act diligently and in good faith to ascertain the existence of discoverable records and to cause them to be made available ….” In Hernandez, the court held that the defendant’s argument that she was unlikely to obtain a HIPAA authorization from the person she allegedly assaulted was plausible, and “the defendant could not credibly be expected to obtain these records by subpoena duces tectum [sic].” The prosecution did not provide the records in their original COC, instead providing them in a supplemental COC which was filed approximately three weeks later. The defense argued that the prosecution failed to comply with their obligations under 245.50(1) because they did not provide an explanation as to why the medical records were belatedly disclosed. The court declined to adopt this argument. It held that to comply with their discovery obligations the prosecution exercised their ability to compel production of records which were not in their custody or prepared at their request. The court credited the prosecution’s argument that they subpoenaed the records in a “timely” fashion and that they “did not have control of the amount of time it took for said records to be received ….” The court held that the prosecution exercised due diligence and declined to find the initial COC invalid.

In People v Olah, 79 Misc 3d 1240(A) (Crim Court, Queens Co 8/11/2023), the court found that the prosecution’s COC was invalid and their statement of readiness (SOR) was illusory and granted the defendant’s CPL 30.30 motion, finding 214 days of chargeable time. Judge Licitra spelled out the legal standard for a good faith COC under CPL 245.50(1), (3), citing key decisions from the Second Department. At issue was proper disclosure of police misconduct and a prosecutorial failure to investigate other agency records for discoverable material. While the prosecution argued that they could disclose only “relevant” records–citing others as “non-discoverable” under CPL 245.10(1)(a) and 245.70–the court reminded them that a significant volume of caselaw states the opposite.

A common thread from prosecution at large in discovery litigation has been the selective use of CPL 245.10(1)(a) as “a source for supposed unilateral authority to censor.” For a valid COC, the prosecution alone cannot determine what may be relevant to impeachment of a witness with respect to police misconduct records. Separately, the prosecution must state their attempts to obtain such records from police departments. The prosecution’s good faith efforts to determine the existence of discoverable information extends to other agencies such as the New York City Fire Department (FDNY) when, as here, such agencies have been deemed by prosecution to have significant involvement. Since the prosecution (1) unilaterally decided what was relevant to impeachment; (2) failed to substantiate any of their alleged good faith investigations to ascertain discoverable material at other agencies; (3) failed to contact a significant source of possible discoverable material (FDNY); and (4) filed their COC and SOR with these defects, the court deemed the COC invalid and SOR illusory. Importantly, Judge Licitra dismantled the prosecution’s argument that defense counsel was strategically “lying in wait” to invalidate the COC/SOR for 30.30 dismissal purposes, stating that the purpose of the COC is an affirmative statement of compliance with open discovery, not a means to “certify that the People have delivered a riddle to the defense to solve what material they have withheld.”

Improvident Use of Discretion to Issue Order of Commitment in Child Support Contempt Proceeding

In Hoffman v Hoffman (2023 NY Slip Op 04959 [10/3/2023]), the Second Department reversed an order of the Orange County Supreme Court that committed the respondent to the custody of the Sheriff and ordered bail. The Appellate Division was particularly critical of the lower court’s failure to inquire as to whether the respondent qualified for the assignment of counsel, as well as its decision to issue a warrant and order of commitment in a case where inability to pay was being raised as a defense; the decision was an improvident exercise of discretion. The court continued, “[t]hat the court issued a warrant and set bail at $40,000 in response to what was, in effect, a late appearance is particularly egregious where the potentially indigent defendant claimed that he did not have the means to pay his court-ordered child support.”

In the Jan.-May 2022 issue of the Backup Center REPORT, there was an item entitled “Family Court Contempt Proceedings Are Not Hopeless.” It provides resources on how to defend a client against a contempt proceeding. Family defenders are encouraged to read the piece, and those with questions should email Family Court Staff Attorney Kim Bode at kbode@nysda.org.

Family Offense Finding Reversed

In the Matter of Geremski v Berardi (2023 NY Slip Op 04883 [9/29/2023]), the Fourth Department reversed the Onondaga Family Court, which issued an order of protection after trial, finding that the respondent committed the family offense of second-degree harassment. In its reversal, the court noted that “‘[a] petitioner bears the burden of proving by a preponderance of the evidence that respondent committed a family offense (Matter of Harvey v Harvey, 214 AD3d 1462, 1462 [4th Dept 2023] …)’”; that burden was not met here. Family offense proceedings and orders of protection issued in such cases are governed by Article 8 of the Family Court Act (FCA). Family defenders representing a petitioner or respondent in a family offense proceeding are strongly encouraged to read Article 8. Specifically, FCA 812 delineates who may file for an order of protection and the types of crimes that qualify as family offenses. Anyone with questions should contact Family Court Staff Attorney Kim Bode at kbode@nysda.org.

Misstatements About its Scope Invalidate Waiver of Appeal

A recent Second Department case is a reminder of the need for accurate information about appeals, appellate counsel, and the availability of 440 relief. In People v Duke (2023 NY Slip Op 05146 [10/11/2023]), the Appellate Division found that the waiver of appeal was invalid where the lower court had “incorrectly stated that the appeal waiver included a forfeiture of the attendant right to counsel and poor person relief (see People v Ali, 216 AD3d 993 …), and mischaracterized the appellate rights waived as encompassing an absolute bar to the pursuit of postconviction collateral relief in both state and federal courts separate from direct appeal (see People v Bisono, 36 NY3d 1013 …).” While people seeking 440 relief outside of a direct appeal have no automatic right to publicly paid counsel, they are not barred by a waiver of appeal from seeking such relief. Nor are people who waived the right to appeal as part of a plea barred from pursuing all claims. See People v Thomas, 34 NY3d 545, 565 (2019) [reversal where the “trial court’s mischaracterization of appellate rights waived as encompassing not only an absolute bar to the taking of a direct appeal and the loss of attendant rights to counsel and poor person relief, but also all postconviction relief separate from the direct appeal ….”]

ILS Issues Revised Appellate Standards

The NYS Office of Indigent Legal Services (ILS) has issued revised Appellate Standards and Best Practices. Reflecting changes in law and practice since the original standards were issued in 2015, and improving clarity and readability, the revised standards are intended to, among other things, “assist providers of mandated representation in advocating for the resources needed to provide quality representation ….”

As the Table of Contents shows, the standards remain divided into three sections: A. Qualifications, Training, and Oversight of Counsel; B. Duties of Counsel; and C. Special Ethical Considerations. The duties are listed in roughly the order that counsel’s responsibilities arise in a case, from Standard 5 (Accepting Cases), which says lawyers “must possess the expertise, time, and resources needed to provide quality representation,” to Standard 15 (Leave Applications). Duties as to specific clients or situations are also included, such as Representing Non-U.S. Citizens (Standard 17) and CPL Article 440 Motions (Standard 20). The section on Special Ethical Considerations highlights issues ranging from Client Communication (Standard 21) to Coram Nobis (Standard 26).

Links to the revised standards are posted on the ILS website and also on NYSDA’s Public Defense Standards webpage. Defenders, justice advocates, state and county officials charged with funding public defense, and everyone interested in the work of public defenders, are encouraged to become familiar with the latest standards. They offer support for efforts to improve the quality of representation available to people unable to afford counsel.

Parents Must Know Their Rights in ACS/CPS Cases as Early as Possible

The online publication The City recently featured an item, “What to Do When Children’s Services Comes to the Door.” The article/guide offers a “know your rights” review for parents amid ACS/CPS investigations. It includes sections entitled: You can refuse to admit ACS into your home; You do not have to speak with ACS or let them speak with your children without a court order; You can speak with a lawyer or legal advocate before answering questions; You don’t have to reveal private information; and You don’t have to use the services ACS offers. Sarah Duggan, Manager of Communications at JMACforFamilies, and Miriam Mack, Policy Director at the Family Defense Practice for The Bronx Defenders, were both interviewed and offered similar messages to parents: “‘It is not social work. It is an investigation,'” and anything you say to CPS can be used against you and may appear in a petition.

NYSDA’s Family Defense Resource Page has information dedicated to educating parents about their rights in child welfare cases. The above article, as well as links to other resources, can be found here. NYSDA strongly encourages defenders to disseminate this information to all parents faced with a possible investigation, regardless of whether the defender is providing representation.

Jane Spinak Authors Book Calling for the End of a Flawed Family Court System

As reported in the Imprint Youth and Family News, Jane M. Spinak, Clinical Professor of Law Emerita at Columbia Law School and former Attorney-In-Charge of the Juvenile Rights Division at New York City’s Legal Aid Society, penned a book calling for the immediate and permanent change to a deeply flawed family court system. In the book entitled “The End of Family Court,” “Spinak also calls for a shift in resources, from family courts to the struggling communities nationwide that send the hundreds of thousands of litigants to these ever-evolving proceedings: families from marginalized communities, who are often impoverished or homeless, and disproportionately Black and Native American.”

“Predictive Policing Software Terrible at Predicting Crimes”

The above-titled article, co-published by Wired and The Markup, discusses an analysis of crime predictions generated for Plainfield, New Jersey, police. Software from Geolitica, formerly PredPol, is the product in question. It “ingests data from crime incident reports and produces daily predictions on where and when crimes are most likely to occur.” According to the analysis, “the success rate was less than half a percent.” As a Plainfield police captain noted, “concerns about accuracy and the department’s general disinterest in using the software suggested that the money paid for Geolitica’s software could have been better spent elsewhere.”

Problems with predictive policing systems were mentioned in a Dec. 29, 2022, News Picks item on comments by the NAACP Legal Defense and Educational Fund, Inc. (LDF) to the Federal Trade Commission. At issue was a Proposed Rulemaking on commercial surveillance and data privacy, focusing on automated decision-making systems. LDF’s comments on predictive policing included an analysis of the predictive policing software PredPol. Analysts found that the software “‘predicted’ little to no crime in neighborhoods with predominantly white and middle to upper income residents, but, by contrast, PredPol ‘targeted relentlessly’ neighborhoods with predominantly Black, Hispanic, and/or low-income families.”

The NY Police Department began using a then-new predictive tool in 2016. Claims that it eliminated bias were challenged in a 2021 Fordham Urban Law Journal article, “A Bias-Free Predictive Policing Tool?: An Evaluation of the NYPD’s Patternizr.” As to another problem with the software, relating to how it is used, a judge ruled in March of this year that the NYPD had to “overhaul its technological systems,” which include Patternizr, “to end its practice of illegally accessing and using sealed arrest records.” See this press release from The Bronx Defenders.

Defenders challenging the legality of police encounters and anyone challenging police budgets that include payment for predictive software may find these materials of interest.

Futuristic Forensic “Tools” Loom While Old Methods and Theories See Continued Challenges

New developments in computer software, including artificial intelligence, and other technological offerings continually loom over defenders. Trying to keep up with techniques used against clients is hard—some threats never materialize, others creep into use by police and prosecutors. Recent news items tout claims like these: “A new marijuana breathalyzer product has hit the market and is being billed as a way for employers to be able to accurately screen workers for on-duty marijuana use” (here) and “novel technology … combines Raman spectroscopy and advanced statistics to identify body fluid traces at crime scenes” (here).

Meanwhile, old “tried and true” forensic methods continue in use while challenges to them continue. In one recent example, tool-mark comparisons of shell casings at crime scenes and guns allegedly used by suspects were the subject of a new study. It revealed that “mismatches are more likely than matches to be reported as ‘inconclusive’ in cartridge-case comparisons.” This information is favorable to the defense, but only if it is known. Iowa State University, where the researchers are located, reported the study.

A seemingly outdated and obscure test performed by some medical examiners to determine whether a baby had been stillborn or born alive has taken on new significance in the wake of increasingly draconian anti-abortion laws nationwide. The “lung float test” has been used across the country “in at least 11 cases where women were charged criminally since 2013 and has helped put nine of them behind bars,” reported ProPublica on October 7th. Critics of the test call it “pseudoscience masquerading as sound forensics,” akin to the “tests” in witch trials of long-ago era. Whether the lungs of an autopsied baby float—supposedly an indication that the baby had breathed, drawing in air—proves little, critics said, as “there are many ways that air can enter the lungs of a stillborn child.” An article making similar points about an Indiana case was published in the New York Times Magazine eight years ago.

Another medical theory that still threatens to wrongly convict people of murder or abuse is the “shaken baby syndrome” or “abusive head trauma” (SBS/AHT). In New Jersey, an intermediate court upheld a trial court ruling disallowing testimony about the theory; the lower court had called it “akin to junk science.” The prosecution is expected to appeal the Superior Court’s ruling in State v Nieves (No. A-2069-21, 2023 WL 5947996 [9/13/2023]). The trial court decision and SBS/AHT were mentioned in the Aug. 10, 2022, edition of News Picks.

For additional materials or help on these and other forensic issues, contact NYSDA’s Forensic and Discovery Support Unit.

Association News

Thursday, November 2, 2023, 2:00 – 3:30 pm: Litigating Cognitive Bias and Race, with Janis Puracal, Executive Director, The Forensic Justice Project. This session will highlight the relationship between cognitive bias and race, and how that relationship impacts decision-making in forensics. Details and registration information are available here.

This is the second of 10 webinars presented by our Discovery and Forensic Unit. The two-part training on Pattern Matching begins with Firearms and Toolmarks on November 16 from 2:00 – 4:00 pm and Latent Prints on November 30 from 2:00 – 3:30 pm. Details and registration information for the series are available here.

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