Updates to Guide to NY Evidence Homepage

The Guide to New York Evidence found on the NYS Unified Court System website now includes a chart comparing the Guide and the Federal Rules of Evidence. While on the Guide homepage, look to the table of contents at the left margin under “Research Aides,” to access this chart.

Other changes announced in May 2023 include the addition of several rules and updates of others. The updates are explained in an endnote to each updated rule: 1.09. Court Determination of Preliminary Questions; 4.03. Completing and Explaining Writing, Recording, Conversation or Transaction; 8.00. Definition of Hearsay, and 11.11. Personal Appearance, Condition, or Capability Exhibited.

The following rules were added: 4.27. Defendant’s testimony re: Intent, Knowledge, Motive; 4.37. Mental Disease or Defect Evidence to Negate Intent; 6.03. Exclusion of Witnesses & Ban on Discussing Testimony (New subd. [3]); 6.12.1. Impeachment by Benefit to a Witness; 6.25. Impeachment by Silence; 7.21. DNA Evidence; 8.41 State of Mind (New subd. [2]); 8.42. Statement of Pain, Illness, or Physical Condition by Unavailable Declarant; and 8.45. Verbal Act.

A description and history of the Guide by William C. Donnino, published in the New York Law Journal, carried the heading “New York’s Evidence Guide: the Court System’s ‘Best Kept Secret’” as noted in News Picks on Oct. 18, 2019.

Immigrant Defense Project Has New Resources to Address Second Circuit’s Landmark September 6th Decision in Minter 

In United States v Minter, the Second Circuit held that certain New York drug convictions are not aggravated felonies or offenses relating to a controlled substance. Resources to help aid practitioners are available on IDP’s website here, which also includes guides as well as a model motion. NYSDA thanks IDP for sharing these valuable resources with defenders. 

National Database of Social Science Research and Data Intended for Defenders

A new database containing briefs, motions, and transcripts relating to social science research and data, intended to help public defenders, can be found here. The website says, “[f]rom the science of eyewitness memory to studies on how jurors think, Data for Defenders promotes creative and evidence-based advocacy through research. Our database of briefs, motions, and transcripts is designed to expand the toolbox for defenders nationwide.” The project is sponsored by the University of Michigan’s MDefenders program and others, including public defender offices and organizations around the country.

OCA Requests Public Comment for Judicial Accommodations under ADA

The Chief Judge’s Advisory Committee on Access for People with Disabilities (“Committee”) is seeking public comment on a new rule that would authorize trial judges to entertain ex parte accommodations under the Americans with Disabilities Act.

While acknowledging certain accommodations are available via administrative remedies, the Committee notes that other necessary accommodations are only possible through judicial intervention. Potential judicial accommodations include “adjournments, extended time to submit papers, remote appearances, schedule changes, and the way testimony is given.” The Committee explains the proposed rule as being “critical to promoting access to justice for individuals with invisible disabilities and that the rule properly balances confidentiality against the due process and ethical concerns implicated.” To walk that line the rule “will both authorize a court to entertain requests for judicial accommodations on an ex parte basis and allow court users with disabilities to seek a needed disability accommodation on a confidential basis, without fear of public exposure of sensitive personal information.”

Comments are due by October 2 and can be sent to rulecomments@nycourts.gov.

ACS Agrees to Pay $75,001 to Settle Lawsuit Alleging Unlawful Targeting of Black and Brown Families

As previously reported in the June 2, 2023, edition of News Picks, The Bronx Defenders, together with the law firm of Arnold and Porter, announced that they filed two lawsuits against The Administration for Children’s Services (ACS) to “Stop its Reign of Terror Against New York’s Most Marginalized Families.”

Last week, The Bronx Defenders and Arnold and Porter announced in a joint press release that one of the two lawsuits has been settled with ACS agreeing to pay $75,001 plus attorney fees to Chanetto Rivers, a parent who had her newborn forcibly removed at the hospital based on a positive cannabis test. The baby was removed despite the legalization of recreational marijuana use pursuant to the Marihuana Regulation and Taxation Act (MRTA). NYSDA strongly encourages defenders to familiarize themselves with the MRTA when representing a client in a neglect proceeding in which there are any allegations of cannabis use. Ms. Rivers stated in the press release, “‘I didn’t just bring this lawsuit for myself, but for every Black family that ACS has ripped apart’ ….” “‘They know what they did was wrong. And now, they’re on notice.’” Additional reporting can be found in Gothamist and The New York Times. NYSDA congratulates Ms. Rivers, The Bronx Defenders, and Arnold & Porter for this important and decisive victory. This is a small but important step towards holding ACS accountable for its illegal practices of targeting Black and brown families.

NYC Providers Submit Joint Testimony to the U.S. Commission on Civil Rights on Racism Within Family Court and Family Policing System

As previously reported in the June 14, 2022, edition of News Picks, “after reports of rampant discrimination in the family regulatory system and pleas from impacted parents, the New York Advisory Committee to the US Commission on Civil Rights decided to take action on May 20, 2022, voting to initiate an investigation into the heavy-handed NYS child welfare system and its practices.”

In response to this year-long investigation countless impacted individuals, advocates, academics, researchers, and government officials gave testimony to the U.S. Commission on Civil Rights, including NYC institutional providers of family court mandated representation. The Bronx Defenders, Brooklyn Defender Services, the Center for Family Representation, and Neighborhood Defender Services of Harlem issued joint testimony to The Commission. The testimony concluded with 12 recommendations, including calling for divestment “from the family policing system and invest[ment] in Black families”; amendment of the Family Court Act “to eliminate or at least narrow, the definition of ‘neglect’”; regarding federal legislation, repeal of the Adoption and Safe Families Act and amendment of the Child Abuse Protection and Treatment Act; at the state legislative level, support efforts to pass several bills including the Anti-Harassment in Reporting Bill (A2479/S902), Family Miranda Act (A1980/S901), and Informed Consent Act (A109B/S320), and ensure that parents and families are provided timely access to defense counsel. The final recommendation is: “End the silencing, decentering, and other daily acts of racism in family court and create clear reporting and accountability mechanisms.”

Bryanne Hamill, Chair of the New York Advisory Committee, issued a statement thanking those who shared their experiences and knowledge for the study. Hamill further said that the Advisory Committee is drafting its report, which they plan to publish on “the U.S. Commission on Civil Rights website in the spring of 2024 ….”

ABA Approves Revised Ten Principles

The American Bar Association (ABA) issued its original Ten Principles of a Public Defense Delivery System in 2002. In early August, the ABA adopted a new iteration of this set of “basic criteria for providing effective representation to defendants who cannot afford an attorney,” as noted by the federal Defender Services Office training division website. The revised Principles can be found in Resolution 603.

Independence of public defense providers and attorneys properly remains the first principle. Providers and lawyers “should be independent of political influence and subject to judicial authority and review only in the same manner and to the same extent as retained counsel and the prosecuting agency and its lawyers.” [Footnote omitted.] The portion of Principle 1 requiring selection of chief defenders, lawyers, and staff to “be based on relevant qualifications” has been expanded. The timely addition, given certain attacks on affirmative action, says that selection of defenders should also “prioritize diversity and inclusion to ensure that public defense staff are as diverse as the communities they serve.” [Footnote omitted.]

Some original principles were merged to make room for additions. One addition, the new Principle 10, begins: “Public Defense Providers should be included as equal participants in the legal system.” And the new Principle 4, “Data Collection and Transparency,” calls for collection and disclosure of data on public defense, with caveats that stress protecting client confidentiality.

The ABA resolution approving the revised Ten Principles calls for jurisdictions to swiftly assess their compliance with these Principles “and implement any necessary legal and policy changes where deficiencies may exist.” The original Ten Principles provided succinct, authoritative directives on the most critical aspects of public defense. They have been used in New York and nationally to educate public officials, courts, and the public about structural public defense needs.

A link to the revised Ten Principles can be found on NYSDA’s Public Defense Standards webpage. NYSDA encourages use of the various standards there to support arguments for both systemic public defense improvements and, where applicable, particular case needs.

NYSDA’s Susan Bryant Quoted in the Times Union Regarding DA’s complaints regarding CPL Article 245

A Times Union article on Sept. 2, 2023, focused primarily on Albany County District Attorney Soares alleging that there has been an increase in dismissals because of discovery obligations that have become too burdensome. NYSDA’s Executive Director, Susan Bryant, was described as “skeptical of prosecutors’ claims. She noted the discovery changes still allow prosecutors to ask judges for additional time to help them meet the requirements.”

The article quotes Bryant: “‘Prosecutors have never provided data to demonstrate that an increase in dismissals, to the extent it is happening, is actually directly tied to discovery reform,’ Bryant said.” Further, “‘[s]ome dismissals may be the result of individuals not being pressured to take pleas at arraignment because they are being released and then it becomes apparent that the prosecutor doesn’t have a complaining witness, or there is another reason why the case never should have been prosecuted,’ she said. ‘Some of these cases are being dismissed because prosecutors have other issues that prevent them from being ready for trial.’”

As reported by Gavin, “Bryant took particular issue with the arguments made by Soares’ office: She noted the statistical showing that in Albany County, prosecutors failed to file a certificate of compliance in 81 percent of cases pending for more than 20 days, which was 3 percent higher than the statewide non-compliance percentage.” Finally, “‘[i]f prosecutors were gathering the evidence from the police and other government agencies and reviewing it to see if their cases had merit – as they always should have done – then it should not be a significant burden to share the evidence with the defense,’ she said. ‘Any workload increases prosecution offices experience can be addressed with funding. If there isn’t enough funding, then we should examine how much more is needed.’”

After this article was published, the Times Union Editorial Board responded. “If district attorneys want to prove their argument on this front, here’s a worthy idea: Offer up a bimonthly tally of the cases that have been dismissed due to speedy trial lapses. This would allow lawmakers and advocates – and the public – to assess whether this spike can in fact be attributed primarily to the 2020 changes, or whether some of the problem stems from other causes, such as prosecutors simply not doing their jobs. Put another way: If district attorneys want to make their case in the most compelling fashion, all they have to do is present the evidence on a timely basis.”

The editorial does not mention that prosecutors’ decisions can skew the data; they have a choice as to which cases to focus discovery efforts on. Prosecutors can choose not to pursue certain cases to ensure they meet discovery requirements in others.

Op-Ed Supports Requirement that Town and Village Justices Be Attorneys

Two attorneys active in the New York State Bar Association authored an opinion piece published in the August 28th issue of the New York Law Journal supporting a requirement that all justices in town and village court be lawyers. The points made included this: the constitutional right to counsel “is jeopardized when the judge hearing the case is not adequately educated and experienced in the law.” The op-ed sets out State Bar policy and recommendations for changing the law that currently allows for lay justices. The op-ed also notes a bill pending in the Legislature—S139-B (Ryan)/A1358-B (Thiele)—that would modify the status quo by requiring that the justices in the 100 busiest town and village court be attorneys. NYSDA, along with the State Bar and other entities including the NYS Association of Criminal Defense Lawyers, Chief Defenders Association of New York, NYS Office of Court Administration, and District Attorneys Association of the State of New York, supports that bill, as noted in the op-ed. Opponents include the NYS Magistrates Association, which devoted much of its Summer 2023 issue of its publication to this topic.

The op-ed, by Andrew Kossover and Catherine A. Christian, also addresses another matter relating to local courts: that is an effort to consolidate town and village courts and/or create district courts.

Vernon C. Bain Center to Close in October, Future of Rikers Uncertain

According to a report in Gothamist, the Vernon C. Bain Center – otherwise known as “the boat” – will close next month. The jail barge off of Hunts Point in the Bronx, opened in the early 1990s, was supposed to be a temporary measure, but instead has been open for over 30 years. The over 500 incarcerated individuals currently at the facility will be moved to Rikers Island.

The closure comes at a precarious moment for the city’s plan to close Rikers itself. In 2019, the City Council passed legislation requiring all facilities on the island to close by 2027. But in August, Mayor Eric Adams suggested the law had to be revisited, as there were too many people still detained there. A timeline of the last ten years of efforts to close the island jails can be found here.

As last mentioned in the May 3, 2022, edition of News Picks, a potential federal receivership of Rikers is becoming increasingly possible. Last month City & State published a useful guide to the options Southern District Judge Laura Taylor Swain has at her disposal to strip New York City of its control of the island.

Tracking Police with Their Own Technology

At DEF CON 31, an annual hacker convention, one of the speakers was the developer of a smartphone app called Rfparty that can visualize nearby Bluetooth devices on a map. While the app’s primary purpose is to detect Bluetooth signals in general, which are often used for device connectivity or advertising purposes, the speaker’s presentation focused on using that same technology to identify police presence. As police technology becomes more sophisticated and interconnected, more of their equipment may emit publicly broadcasted Bluetooth and radio frequency beacons. These types of technologies should prompt defenders to think about not only how their clients may be tracked but also how police activity can be tracked as well. Police tools are increasingly creating data that may be discoverable and can be used to either corroborate or disprove testimony or other evidence.

Association News

NYSDA Website Has Public Defense Job Postings

NYSDA continues to post Public Defense Jobs on our website. Please send any available job openings you’d like to post to Jane Pearson, jpearson@nysda.org, or reach out if you’d like more information. 

Upcoming Trainings

Thursday, September 28, 2023, 12:30 – 2:30 pm: Representing Disabled Parents: Strategies and Solutions for Preserving Their Rights with Robyn M. Powell, PhD, JD, Associate Professor, University of Oklahoma College of Law. This program will cover how to effectively advocate for parents with disabilities in family court. Although the focus of this training is Article 10 proceedings, other areas will be touched on. Details and registration information are available here.

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 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.

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