Department of Motor Vehicles Proposes New Point System, Reapplication Procedures

The New York State Department of Motor Vehicles has proposed amendments to 15 NYCRR Part 131 and Part 136 that, if adopted, would have a significant impact on many New York drivers. The DMV’s notice of rulemaking identifies some of those impacts, such as: “[i]ncreasing the time frame from 18 months to 24 months allows the Department to review a longer period of operation for when administrative action can be taken for a persistent violator, and will result in an increase of about 40% of drivers being classified as persistent violators.”

The amendments to Part 131 would establish a point system for alcohol and drug-related convictions or incidents, including chemical test refusals, and some other violations that currently have no points associated with them. Under the proposed rules, any alcohol or drug-related conviction or incident, as defined in 15 NYCRR 136.5(a)(1), would be assigned 14 points, and any conviction under Vehicle and Traffic Law 511 would be 11 points. Also, a youthful offender adjudication under VTL 1192 would be considered a “conviction or incident.” The proposal would also increase the number of points assigned to passing or overtaking a stopped school bus from 5 to 8.

The proposed amendments would also allow the DMV to increase license suspensions by using a 24-month period, rather than 18 months, to determine whether a driver has accumulated a specified number of points in section 131.4.

Regarding reapplications, section 136.6 would be amended to allow the DMV to review four years of a driver’s history, up from three years. The amendments would also make it easier to permanently deny license reapplications. Instead of the current five or more alcohol or drug-related “convictions or incidents” required for permanent license forfeiture, the proposed maximum would be four. The amendment would also allow permanent forfeiture for any driver with at least three alcohol or drug-related convictions or incidents over a lifetime plus at least one other “serious driving offense” within a 25-year period. Other changes are made to the regulations governing reapplication in Part 136.

Public comments on the proposed regulations must be submitted by November 5th to John J. Kenefick, NYS Department of Motor Vehicles, 6 Empire State Plaza, Room 522A, Albany, New York 12228 or dmv.sm.legal@dmv.ny.gov.

What’s Coming in the Court of Appeals? CAL Tells Us That, and More

The Center for Appellate Litigation (CAL) has issued the September edition of its Court of Appeals Update, a bi-monthly digest of cases pending in the high court that may interest the public defense community. Cases appearing on the Court’s upcoming docket in October include People v Yoselin Ortega, raising the “surrogate Medical Examiner” issue and whether People v Freycinet should be overruled.

Defenders have challenged Freycinet (11 NY3d 38 [2008]) in the past. A New York Law Journal article on April 25, 2011, discussed the First Department’s decision in People v Hall (84 AD3d 79 [4/21/2011]), which ruled against the defense, finding that the Freycinet holding (“the factual part of the autopsy report is nontestimonial and admissible”) was still binding in the wake of Melendez–Diaz v Massachusetts (557 US 305 [2009]).

Two discovery-reform cases (People v Bay and People v Sullivan) are among those to be heard in November. The July 28th edition of News Picks noted CAL’s earlier updates on matters pending in the Court of Appeals.

CAL has also shared its September 2023 Issues to Develop at Trial. The publication “proposes linking jury charges with the concepts of mens rea and adolescent and young adult brain development.” NYSDA appreciates CAL’s generosity in sharing these resources!

Second Dept. Reverses and Dismisses Neglect Finding

In the Matter of Kashai E. (218 AD3d 574), the Second Department reversed a neglect finding against a father on the basis of alleged domestic violence committed against the mother in the presence of the child. In dismissing the matter in its entirety, the appellate court found that the Kings County Family Court improperly relied on uncorroborated hearsay statements of the children as the sole basis for the neglect finding. The Second Department continued: “‘A finding of neglect is proper where a preponderance of the evidence establishes that the child’s physical, mental, or emotional condition was impaired or was in danger of becoming impaired by the parent’s commission of an act, or acts, of domestic violence in the child’s presence’ ….” That burden was not met here. In its ruling, the court relied on Family Ct Act 1046(a)(vi), and the seminal case Nicholson v Scoppetta (3 NY3d 357). NYSDA encourages all family defenders who represent parents in abuse and neglect cases to familiarize themselves with this law. If you have any questions on this or any other family defense matter, please email our Family Court Staff Attorney, Kim Bode, at kbode@nysda.org. NYSDA members can access our training videos on evidentiary issues in family court, as well as an array of other family court topics, on our website, www.nysda.org. 

Pilot “Family Court Miranda” Program Will See ACS Advising Parents of Their Rights

As reported by the Imprint Youth and Family News and the NY Daily News, the Administration for Children and Family Services (ACS) will distribute informational cards to apprise parents of their rights at the earliest stage of a child welfare investigation when ACS makes first contact with the family. The pilot program will involve ACS workers handing parents a palm-sized card advising them they do not have to let ACS into their homes and they have a right to speak to an attorney. The pilot program is expected to start in October and will be limited to certain areas of the Bronx and Brooklyn, whose residents disproportionately have the highest interaction with ACS. Advocates hope that this program will expand to the rest of the city and the state. A statewide bill that requires similar Miranda-type warnings to parents, supported by many organizations including NYSDA, has been stalled in the legislature.

National Workload Standards Released

Fifty years after the publication of the National Advisory Commission on Criminal Justice Standards and Goals (NAC) public defense workload standards, the American Bar Association Standing Committee on Legal Aid and Indigent Defense, the National Center for State Courts, the RAND Corporation, and the Law Office of Steve Hanlon released the National Public Defense Workload Study. The NAC standards set maximum yearly caseloads of public defenders at 150 felonies; 400 misdemeanors; 200 mental health cases; 200 juvenile cases; or 25 appeals. The new standards establish workloads for 11 criminal trial-level case types, from felony cases with a sentence of life without parole (7 cases per year) to probation and parole violations (154 cases per year).

The new study brings needed national attention to public defense workloads and the persistent underfunding of the Sixth Amendment right to counsel around the country. NYSDA applauds the authors and all those involved in the study and we agree with the National Association for Public Defense that the report “is a milestone in assessing our public defense crisis.”

As expected, New York’s current criminal defense caseload standards are higher than the workloads set forth in the new study. We are examining the study and how it can be used to advocate for the resources necessary to comply with the new workload standards, as well as family defense and appellate workload standards that were not part of the national study. We also recognize that many offices (in New York and around the country) are struggling to meet existing higher standards for a variety of reasons, including continued overcriminalization and significant recruitment and retention challenges. NYSDA is committed to working with defender organizations in New York and around the country to address those challenges.

NLADA Releases Report on Video Proceedings

The National Legal Aid & Defender Association released a report entitled “Hold the Line,” discussing the view of impacted individuals who have participated in video proceedings.

The report noted that video proceedings often impede attorney-client participation and result in decreased perceptions of credibility and faith in court proceedings and the increased likelihood of bail being set or deportation. It also highlighted that some impacted individuals and their families prefer video proceedings. Some of the stated reasons for preferring video proceedings are indelible to the socioeconomic nature of who is prosecuted in America -- lack of childcare, reliable transportation, paid leave, and financial resources. Recognizing these competing factors, the report concludes that each impacted individual “should have the right to choose whether to use video proceedings in their case.”

NJ High Court: Use of Remote Translators Should be Rare

As reported by the New Jersey Monitor, the high court in that state has ruled “that there should be a presumption of in-person translation services during criminal jury trials” and set out guidelines for when such services can be used. In the decision, State v Juracan-Juracan (255 NJ 241 [8/15/2023]), the court set out a nonexclusive list of factors to take into account when considering whether to use in-person or remote interpretation services in a jury trial. It also states the need for “guardrails” when remote interpreting is used, “including built-in breaks for the interpreter to rest and for the defendant to consult with counsel.” Organizations that filed amicus briefs in the case all supported the defendant’s position “that forcing him to use a remote interpreter violates his right to a fair trial and equal access to the courts.”

Is this an issue in New York courts? Two years ago, former Chief Judge Janet DiFiore said in a COVID update message that the pandemic “mandate to reconfigure our processes and deliver our services in new and more efficient ways, as we have with language interpretation” had been a good thing. She added, “transitioning to full-time virtual operations enabled our interpreters, judges and court staff to become much more proficient and comfortable with remote interpreting, a development that will certainly improve access and efficiency well into the future.” The Guide to New York Evidence includes in Article 6 a provision on interpreters, calling for appointment of “an interpreter when necessary for a witness or a party to communicate or be understood or for a party to understand the proceedings,” without specifying that the interpreter must be present for any particular proceeding. The Court Interpreter Manual and Code of Ethics, which predates the pandemic, includes a section on Remote Interpreting, which says that while having the interpreter physically present “is always the goal,” the Office of Language Access may arrange for remote interpreting when no qualified interpreter is available. A “tip sheet” appendix indicates that remote interpreting may be used when on-site interpretation is “impractical.” It also notes that if a jury is present, the need for an interpreter should be explained. And the Criminal Jury Instructions include an instruction regarding a defendant participating with an interpreter.

Attorneys are encouraged to contact the Backup Center if the question of remote interpreting arises.

ILS Announces Third Family Defense Quality Improvement & Caseload Reduction RFP

In welcome news to providers of family court-mandated representation, the NYS Office of Indigent Legal Services (ILS) has announced a request for proposals for the Third Upstate Family Defense (Child Welfare) Quality Improvement & Caseload Reduction Grant. As with the first two grants, the money will go towards providing a much-needed infusion of resources to organizations that struggle to deliver quality representation to parents in state intervention cases, especially at those early crucial stages of a CPS case, before a petition is filed. This is the third such grant in as many years, but unlike the first two RFPs, New York City is eligible to apply. Those counties that received an award under either of the first two RFPs are not eligible for this one. 

According to the RFP, “ILS plans to disburse a total amount of $5,639,580 by awarding up to eight grants to counties. Each grant will be operationalized by a three-year contract between ILS and the county, with an award of up to $250,000 per year for each of three years (for a contract total of up to $750,000). Counties may submit proposals either at or less than the maximum amount.” The full RFP announcement with requirements and deadlines can be found here. Applications are due no later than Oct. 27, 2023, at 5:00 p.m., and awardees are expected to be announced in December 2023.

HHS Issues Proposed Rulemaking Aimed at Protecting the Rights of People with Disabilities Within the Family Regulatory System

The Department of Health and Human Services (HHS) has issued proposed rulemaking that, if adopted, would amend its regulations promulgated pursuant to section 504 of the Rehabilitation Act of 1973 to add a new section 84.60 to “more clearly apply the nondiscrimination requirements of section 504, which are consistent with and reflect the requirements of the [Americans with Disabilities Act] ADA, to child welfare programs and activities.” As HHS explained in the rulemaking, “parents with disabilities … have experienced disproportionately higher rates of child removals than nondisabled parents and are often presumed to be unfit because of their disabilities…. [A]s of 2015, 33 states’ statutes [including New York’s] expressly included a parent’s disability as an aggravated circumstance that allows a court to bypass the reunification process by deeming that the disability makes the parent unlikely to benefit from reunification services. While most State laws do not allow for an automatic disqualification based on disability, the inclusion of disability as an aggravating circumstance invites unfounded presumptions by the courts and administering State agencies that disability in and of itself, can be disqualifying.” [Footnotes omitted.]

If passed, this rule change will benefit parents with disabilities and their children, including possibly making it more difficult to remove children and terminate parental rights. Family defenders are encouraged to read the rulemaking and, if they deem it appropriate, to submit comments by the November 13th deadline. The documents, as well as the link to comment to HHS, can be found here.

Additionally, defenders are encouraged to read a tremendous resource for parents with disabilities and their attorneys, a 2012 report issued by the National Council on Disability, Rocking the Cradle: Ensuring the Rights of Parents with Disabilities and Their Children, primarily authored by disability rights expert and NYSDA presenter Professor Robyn Powell. This report is cited throughout the proposed rulemaking.

Foster Care Survivor Urges Dismantling of a Failed System

Foster care survivor and advocate for child welfare reform Kaylah McMillan wrote an op-ed published in USA Today, in which she calls out the “so-called child welfare system” for failing her and countless other youth throughout New York. Now an adult, Kaylah recalls being removed from her mother and placed in “a prison-like environment without ever being a criminal. When I was 14, ACS pulled me out of my home, community, and school and locked me up in a group home.” Kaylah’s story ended on a positive note: being returned to her mother, graduating from high school on time, getting a job, and being able to read and write. Many foster children are not so lucky. Children’s Rights recent report, Are you Listening? Youth Accounts of Congregate Placements in New York State, offers first-hand accounts of youth placed in congregate care. 

Being placed in foster care can have long-term “side effects.” For example, former foster children incarcerated as adults are denied participation in reentry programs geared toward families, as discussed in a recent article, “When Prisons Privilege Family Ties, Who Gets Left Behind?“ The article notes that “[p]risons sometimes temper their isolating nature by connecting prisoners to family, but State Raised individuals are still excluded.”

Association News

Thursday, October 12, 2023, 1:00 – 2:30 pm: Litigating Crawford with Eli Northrup, Policy Director and Defender, Criminal Defense Practice, the Bronx Defenders, and members of the Bronx Defenders Family Defense team. Register here.

Friday, October 19-21, 2023: Practical DWI Detection and Standardized Field Sobriety Testing (SFST) Instruction Course with instructors Jonathan D. Cohn, Partner, Gerstenzang, Sills, Cohn & Gerstenzang, and John R. Sandle, Owner & Chief Investigator, Sand Investigations Certified Instructor, NHTSA DWI Detection and Standardized Field Sobriety Testing. The program schedule and registration information are available here.

Thursday, October 26, 2023, 2:00 – 3:30 pm: Facing a Discovery Dump: Organizing Your Criminal Defense from the Start with Ashley Hart, Staff Attorney with NYSDA’s Discovery and Forensic Support Unit. This training focuses on approaches to sorting and organizing a discovery dump from the District Attorney’s office in a way that aims to guide your motion practice and litigation strategy. A portion of the course will be dedicated to discussing your specific practice in this area. Register here.

Monday, October 30, 2023, 2:00 – 4:00 pm: Advocating for Parents Facing Allegations of Mental Illness in Article 10 Cases with Kelly Nakashima, Social Worker, Family Defense Practice, Brooklyn Defender Services; Ambika Panday, Supervising Attorney, Family Defense Practice, Brooklyn Defender Services; and Aubrey Rose, Senior Staff Attorney, Family Defense Practice, Brooklyn Defender Services. This training is focused on elevating interdisciplinary practice in family defense, specifically representing parents who face allegations of mental illness in Article 10 abuse and neglect proceedings. Details and registration information are available here.

Discovery and Forensic Unit Webinar Series

The October 26th training is the first in a series of webinars to be presented by our Discovery and Forensic Support Unit. In this series, offered for free to all defense practitioners and defense team members, you will learn about the most current issues in forensic litigation from a diverse group of presenters that specialize nationally on these topics. Registration is now open for 9 of the 10 sessions. The second webinar, Litigating Cognitive Bias and Race, will be held on November 2 from 2:00 to 3:30 pm.

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