|
Forensic Science Commission’s Practice Advisory Letter to Lab Directors: Brady and Giglio Obligations and Discovery Laws Extend to Labs
New York State’s Commission on Forensic Science recently issued a letter to laboratory directors across the state. The letter followed a discussion at the June 13th Commission meeting about a serious misconduct incident that Commission member and Onondaga County District Attorney William Fitzpatrick characterized as one that “intrinsically and unequivocally relate[s] to the person’s honesty.”
The letter reminded lab directors that Brady and Giglio obligations and the discovery laws extend to “the conduct of Laboratory employees and Laboratory Directors” and that disclosures must be timely made, including disclosures that relate to employee misconduct. While an internal investigation regarding a particular lab employee or employees may be ongoing and shielded from public scrutiny, the subject matter of the letter served as a general reminder: if you see something, say something. If a lab director learns of questionable conduct, they report that to prosecutors in their jurisdiction and follow up by notifying the accreditation body, ANSI National Accreditation Board, and the Commission. A copy of the letter can be found here. NYSDA will share additional information if more is publicly disclosed.
Scope of Manufacturer Error in DNA Kit is Unknown
The New York State Commission on Forensic Science recently discussed an issue that came to light last year that may have wide-reaching consequences. Labs in Texas and Virginia discovered that they appeared to be extracting less DNA than expected in their samples. The Houston Forensic Science Center uncovered irregularities during its regular quality control processes. The forensic DNA kits being used came from Qiagen, an equipment and products manufacturer with a worldwide customer base. Only in recent months did Qiagen allegedly make changes at its production factory, asserting that “there is no indication of a broader systemic issue” in a letter to its customers. Rightfully unsatisfied with this statement, Texas labs began reviewing 700 cases that may have been affected by the manufacturer’s faulty kits. Texas Public Radio quoted New York attorney and forensic consultant, Elizabeth Daniel Vasquez, who flagged a concerning length of time that these issues persisted without being caught by Qiagen.
Signature Science, a subsidiary of San Antonio’s Southwest Research Institute, issued the following statement to its customers regarding the Qiagen kits: “Signature Science believes any sample extracted between June 24, 2024, through February 28, 2025, that utilized EZ1&2 DNA Investigator reagent [buffer solution] cartridge lots 178019172, 178026981, 178029201, or 178032040 may be impacted by this issue.”
The New York State Commission wanted to determine whether and to what extent these reagent issues from a Qiagen product affected their testing. NYSDA will be tracking this issue and providing details as they become publicly available.
Recent Decisions on Extraordinary Circumstances in RTA Cases; Court of Appeals Expected to Address Issue
In early August, the Second Department issued decisions in two Raise the Age (RTA) cases involving the interpretation of the phrase “extraordinary circumstances” as used in CPL 722.23(1)(d). In People v Lloyd F. (2025 NY Slip Op 04583 [8/6/2025]), the court held that the Youth Part abused its discretion in granting the prosecution’s motion to prevent removal of the weapon possession case to the family court. To analyze the phrase “extraordinary circumstances,” the court was “guided by its common, ordinary usage, as reflected in dictionary definitions, and by the history and context of the Raise the Age legislation.” [Citations omitted.] Based on the legislature’s intent, dictionary definitions of the word “extraordinary,” and the evolving understanding of brain science that was the impetus for the passage of the RTA law, the court concluded “that extraordinary circumstances should only be found in the most exceptional cases.” When assessing an individual case, courts should “look for aggravating factors that demonstrate a degree of cruelty, heinousness, or recidivism suggesting that an adolescent offender’s conduct is simply not the result of youthful impulsivity or an inability to control their environment.” [Citations omitted.]
In Lloyd F., the court found that possession of a loaded weapon “where no one was physically harmed, no property was damaged, and the firearm was not used in furtherance of another crime” did not rise to the level of exceptionality. Evidence submitted by the prosecution of the defendant’s behavior in an undated social media livestream in which he appeared to smoke marijuana and point a firearm at the camera are “the very characteristics of adolescent decision-making … that warrant the sensitive treatment of youth in the justice system ….” The defendant’s prior youthful offender adjudication for a group assault two years earlier where he was not the primary actor and received a term of imprisonment of one year does not amount to an aggravating factor; in fact, the record showed that the defendant was engaged in services during and after his incarceration. “A second arrest for a victimless act of adolescent bravado does not convert otherwise ordinary circumstances into extraordinary ones.”
Citing its decision in Lloyd F., the Second Department found that the prosecution failed to establish extraordinary circumstances in another case involving gun possession charges, People v Yahmir T.D. (2025 NY Slip Op 04582 [8/6/2025]). In contrast to the Second Department’s approach to the extraordinary circumstances analysis, earlier this year the Fourth Department summarily affirmed a lower court’s order granting the prosecution’s motion to retain the case in adult criminal court, concluding “that, under the totality of the circumstances, and taking into account the mitigating factors and the substantial aggravating factors, the court did not abuse its discretion in determining that extraordinary circumstances exist warranting this case remain in the youth part.” [Citations omitted.] People v Guerrero (235 AD3d 1276 [2/7/2025]). The dissent in Guerrero wrote: “Based upon the majority’s conclusion that the facts and circumstances of this case warrant a finding of extraordinary circumstances, one could question what set of facts would need to be presented that would not justify granting a motion to deny removal to the Family Court under CPL 722.23 (1).” Leave has been granted in Guerrero and the Court of Appeals will hear the case during its upcoming term.
Defense attorneys representing young clients in RTA, youthful offender-eligible cases, and other adult criminal and juvenile proceedings and defense team members are strongly encouraged to read Alan Rosenthal’s manual, A Defense Attorney’s Guide: Representing Adolescents. The manual is available for free on NYSDA’s website and attendees at our July 2025 Annual Conference received a print copy of the manual. Defenders with questions are also encouraged to contact our Public Defense Backup Center for assistance.
Parole Board Proposes New Regs on Release of Those Serving a Maximum Sentence of Life Who Were Under 18 at Time of Crime
The Parole Board has proposed the repeal of its existing regulations for the parole release from prison for people serving a maximum sentence of life for crimes committed when they were under age 18, and adoption of new language proposed to give “‘great weight’” to characteristics shown by developments in psychology and brain science to be specific to youth. The proposal, as reported in the Buffalo News on July 31st, is subject to comment; see the State Register of August 13th. Comments will be accepted until 60 days after publication of the notice.
According to the State Register notice: “The Board’s consideration of minor offenders has been the subject of litigation, including a purported class action that is currently pending. The Board considers its current practices to be lawful, but has agreed in discussions with plaintiffs that further amendments to the regulation pertaining to minor offenders as sought by litigants in order to clarify the decision-making process, delineate typical minor offender characteristics to be taken into account and incorporate certain procedural requirements are within the scope of its rulemaking authority. The anticipated benefit of this amendment will be that the decision-making framework for minor offenders will be clearer and more transparent.”
Public Assistance and SNAP Intentional Program Violation County Plans Available
The Empire Justice Center (EJC) has collected Intentional Program Violation (IPV) plans for almost every county in New York State and has made them available on their website. As noted on the EJC resource page:
“In October, 2023, the Office of Temporary and Disability Assistance (OTDA) released 23-INF-04 an informational letter requiring all social services districts to submit an updated Investigative Unit Operations Plans (IUOP), and the agreements made between the district and the District Attorney from each county. The plans include detailed procedures for investigating and prosecuting alleged Intentional Program Violations (IPVs) in the Temporary Assistance or Supplemental Nutrition Assistance Programs, including detailed procedures for the referral of suspected fraud cases to OTDA for Administrative Disqualification Hearings. The INF makes clear that districts must maintain a clear delineation between referrals to prosecuting authorities and referrals for administrative hearings when pursing IPVs. The agreement with the prosecutor must set forth the criteria set by the prosecutor for accepting cases for prosecution. Here is where you are likely to find any dollar thresholds required for referral to the district attorney. The INF attachments include a plan template, interview protocols and DCA [Disqualification Consent Agreement] interview Acknowledgement in both English and Spanish.”
Thank you to EJC and Susan Antos, EJC’s Managing Attorney, Public Benefits, for making this valuable resource available to defenders. If you are in one of the eight counties that did not respond to EJC’s request, we encourage you to make your own request for the plan and share it with EJC. Those with questions can contact the Backup Center at info@nysda.org or Susan Antos at SAntos@empirejustice.org.
WNY RIAC Newsletter for August: Hot Topics
The August 2025 issue of the Western New York Regional Immigration Assistance Center (WNY RIAC) includes several topical items. One explains that among the reasons to ask clients about their country of birth, not citizenship, is that the federal government is now prioritizing denaturalization of U.S. citizens who obtained their citizenship by fraud, such as those who had committed felonies they did not disclose when they naturalized. The News Picks edition of Nov. 8, 2024, discussed federal caselaw holding that criminal defendants who are naturalized U.S. citizens must be advised about any risk of deportation following denaturalization proceedings following a conviction. See Farhane v United States, 121 F4th 353 (2nd Cir 10/31/2024). Other items include one pointing out that a single conviction for a crime of domestic violence renders a noncitizen deportable—"a state felony, misdemeanor, or violation, as in the case of harassment” under Penal Law 240.26(1). Another item discussed the Board of Immigration Appeals decision denying a person in deportation proceedings discretionary relief because of an arrest for DUI when a child was in the car. The newsletter also includes a list of countries whose citizens are at higher risk of being sent to a third country when deported from the U.S.: Bhutan, Burma (Myanmar), Congo (DRC), Cuba, Eritrea, Ethiopia, Hong Kong, India, Iran, Laos, Pakistan, China, Russia, Somalia, and Venezuela.
Defenders—whether from an institutional office or assigned counsel—with clients in criminal or family court cases should contact their RIAC for information and guidance on possible immigration consequences of the state cases.
Body-worn Camera Compliance Issues in Suffolk County Police Department
A recent report from the Suffolk County’s Human Rights Commission (HRC) found that during a 12-month period, between June 1, 2024 and May 31, 2025, there were 83 incidents where police officers failed to activate body-worn cameras (BWC). The HRC reported that these failures limit the ability to assess misconduct allegations, which in turn erodes community trust in the department.
The Suffolk County HRC investigates and enforces laws critical to human rights, fair housing, among other key rights and liberties. Since 2023, the HRC’s Administration of Justice Subcommittee has been monitoring the Suffolk County Police Department’s (SCPD) Internal Affairs Bureau (IAB) investigations. During the past year, the HRC concurred with IAB dispositions in 87.4% of the 287 cases reviewed. More information can be found in the 35-page Civilian Police Oversight Annual Report.
The IAB has agreed to categorize failures to activate BWC as allegations of misconduct, while the HRC is pushing for clear disciplinary guidelines for officers who fail to activate their cameras. Currently, officers only receive a warning with no further punishment.
The report described the relationship between the HRC, department leadership, and IAB as courteous, and the department has been receptive to their findings and critiques. However, problems persist, as there have been failures to provide evidence in some cases to the HRC, and the department has also failed to provide officer complaint history. Additionally, many IAB investigations drag on too long. While they are supposed to be completed within 60 days, 51.5% exceeded that deadline. Another concern raised is the classification of certain complaints as “notifications,” which means IAB has determined the issue is outside its jurisdiction. Although IAB provides explanations when asked, there is no supporting evidence. Further action, including collective bargaining with the Suffolk Detectives Association, will be required to push detectives to wear body cameras.
The report illustrated that many of the videos show officers “keeping their cool” and making efforts to de-escalate situations while in other incidents, officers needlessly raised tensions. The HRC plans to address these incidents directly with SCPD and IAB and strongly advised that the two entities develop standard operating procedures to help rectify some of the issues found.
When asked for comment by Newsday, HRC member Carolyn C. Peabody, the chair of the Administration of Justice Subcommittee, stated, “‘One of the things we say in the report is that not using your body camera is obstructing justice, because we have a responsibility to make sure people’s rights are being protected and not being able to make sure that is happening means justice can’t be done’ ….”
Legal Aid Society Argues DOCCS Should Be Held In Contempt For Failure to Implement HALT Act
As last covered in the May 14, 2025 edition of News Picks, the Department of Corrections and Community Supervision (DOCCS) continues to refuse to implement 2021’s “HALT” Act. In mid-August, The Legal Aid Society filed a second motion to either compel DOCCS to comply with the legislation or hold the department in contempt.
The motion comes off of a July decision that preliminarily enjoined the Department from suspending HALT. That decision held that DOCCS needed to file “detailed facts” describing the emergency situations supposedly occurring in their facilities and a rational connection to their suspension of HALT. In Legal Aid’s August filing, they claim that DOCCS has refused to do either and should either be compelled to comply with July’s preliminary injunction or be held in contempt.
Riley Evans, staff attorney with The Legal Aid Society’s Prisoners’ Rights Project, put the stakes of the litigation succinctly: “Thousands of New Yorkers are spending weeks and months locked in their cells without meaningful interaction with other people. The stakes here are nothing short of human dignity and torture.”
NYC Mayor Adams’ Secret Surveillance Network
Mayor Adams has perniciously expanded surveillance in New York City by linking cameras in New York City Public Housing Authority (NYCHA) developments directly to a central system with the NYPD, as reported by New York Focus and confirmed by a police spokesperson. Prior to digital systems upgrades via the Big Apple Connect free internet service, police could only get videos from NYCHA developments by physically going to each location after an incident was reported. Now, the NYPD can stream videos in real time without leaving their stations and “review footage beginning 30 days prior to an incident.”
Worse yet, the NYPD plans to connect cameras at 20 NYCHA developments to its Domain Awareness System, described by New York Focus as, “the department’s controversial counterterrorism and anti-crime platform that, without warrants, collects CCTV footage from thousands of cameras across the city. The system fuses expansive data on New Yorkers’ physical movements, digital footprints, biographical information, and law enforcement interactions into a centralized repository, which the NYPD can harness to support facial recognition analysis and predictive policing algorithms that use pattern recognition to decide where and how to allocate police resources.” All of this has been done without public disclosure, and without NYCHA residents or other stakeholders being informed about the surveillance feature component of the Big Apple Connect Network. Further, the information about which 20 developments are being tracked in this way is completely secret. New York Focus identified five unanswered questions in another recent article, highlighting the changing stories among the various partnered agencies.
New York Focus encouraged readers with thoughts on NYCHA surveillance to contact reporter Zach Groz via email here, or on Signal at zg123.87.
Rule on Electronic Court Appearances Provisionally Effective; NYSDA Has Commented
Following changes in the law regarding electronic court appearances (Criminal Procedure Law article 182 and Executive Law 832(4)), noted in News Picks on May 14th, the Chief Administrative Judge in June proposed a new rule regulating electronic appearances during criminal proceedings. The rule was adopted provisionally, becoming effective on July 8th. NYSDA submitted comments on the proposed rule. We pointed out ways in which the proposed rule could harm defendants, such as being read to improperly allow courts to engage directly with represented defendants without ensuring they first received counsel’s advice about consenting to virtual appearance and/or to improperly inquire as to reasons for refusals to consent to appear remotely.
Our submission included our criticisms of the law that directed the promulgation of the court rule. We stressed that hybrid or virtual proceedings should not be the norm. See our Statement on Virtual/Remote Court Appearances (Nov. 23, 2020) and the National Association for Public Defense Statement on the Issues with the Use of Virtual Court Technology (June 18, 2020). Flaws in the legislation flow from its inclusion in the budget “without consultation with the NYS Office of Indigent Legal Services or criminal defense providers,” we noted.
ILS Announces the Availability of Funds for Four “Model Offices”
The NYS Office of Indigent Legal Services has announced “the availability of funds and solicits proposals from New York State counties outside of New York City to establish a model Family Representation Office (“Model Office”) to provide legal representation to adults eligible for assigned counsel under New York Family Court Act (FCA) §262 and County Law Article 18-B.” Unlike the two model offices currently existing in Westchester and Monroe Counties, the four offices that will be funded under this proposal, according to the announcement, can use the funds for all areas of adult mandated representation, with a priority on state intervention cases. “The defining features of the Model Office will be caseload relief, timely access to counsel, and an interdisciplinary, holistic model of representation that uses a defense team to address both the legal and social service needs of clients.” Each of the four county model offices will receive up to $1 million per year for three years. The deadline to apply is Oct. 20, 2025, with a tentative contract start date of January 2026. More information on the RFP can be found on the ILS website, here.
Supporting America’s Children and Families Act Takes Effect in October
On June 18, 2025, the United States Children’s Bureau issued an Information memorandum to “inform states and Tribes of enactment of the Supporting America’s Children and Families Act (SACFA) and provide information on the new law.” The SACFA was signed into law in January 2025 and goes into effect on Oct. 1, 2025. It reauthorizes and amends Title IV-B programs.
According to the memo, the law includes, but are not limited to, provisions on:
“Legal Representation: Requires agencies to describe the steps they will take to ensure that information about available independent legal representation in specified child welfare proceedings are provided to the child, as appropriate, and the child’s parent, legal guardian or individual who has legal custody (sec. 422(b)(4)(C) of the Act).”
“The Indian Child Welfare Act of 1978 (ICWA): Expands the current state plan requirement directing agencies to consult with Tribes and describe specific measures taken to comply with ICWA to now also describe how the state will ensure timely notice to Tribes of state custody proceedings and placements involving Indian children and case recordkeeping related to transfers of jurisdiction, termination of parental rights, and active efforts (sec. 422(b)(9) of the Act).”
“Policies Relating to Poverty and Neglect: Requires agencies to provide a description of policies, including training for employees, to address child welfare reports and investigations of neglect concerning living arrangements and subsistence needs to prevent the separation of a child from a parent solely due to poverty, to ensure access to support services for immediate needs (sec. 432(a)(11) of the Act).”
“Involving Youth and Families with Lived Experience: Requires agencies to consult with youth and families with lived experience in child welfare systems, in addition to the nonprofit and community-based organizations currently required, and to make a report publicly available on how the agency has implemented the youth’s suggestions (sec. 432(b)(1) of the Act).”
“Excited Delirium Syndrome” Should Not be a Recognized Cause of Death
Referencing a December, 2023 article from New York Focus, a bill from state Assemblymember Jessica González-Rojas would essentially ban state authorities from citing “excited delirium syndrome” as a cause of death. Assembly Bill A697 would “invalidate the syndrome as a defense in civil and criminal lawsuits and bar public offices and contractors from referencing it in policies, procedures, death certificates, and autopsy reports.” The bill has passed in the state Senate.
Writing in City & State, Assemblymember González-Rojas cites medical research describing excited delirium as a “convenient diagnosis” which “enables police to justify ultra-aggressive tactics and then shirk accountability when those tactics wind up killing someone in their custody.”
While the legislation did not pass this session, the reasoning behind the bill–and its momentum–may be helpful to defenders and clients in cases where prosecutors reference this pseudoscience.
Association News
Discovery & Forensic Support Unit Summarizes Steps for Expert Funding
NYSDA’s Discovery & Forensic Support Unit has created a summary guide for attorneys seeking funding for experts, investigators, and auxiliary services. One version is a text-only informational one-pager, suitable for carrying with you and the second version organizes the steps in a visually appealing way, suitable for easier reading and display.
New Issue of the Public Defense Backup Center REPORT Available
The January-April 2025 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; Additional Fall Programs Coming Soon
In Person Training
September 25-26: Advanced Roadside Impaired Driving Enforcement (ARIDE) Instruction Course
This two-day defender practice skills program is comparable to the Law Enforcement Academy NHTSA Training. Participants must have completed a program comparable to the basic NHTSA Standardized Field Sobriety Testing (SFST) program to attend this program. Please reach out to us at training@nysda.org if you are unsure of your eligibility. More information is available here. Registration deadline: Friday, September 5th.
October 2, 12:00 pm – 5:00 pm and October 3, 2025, 8:00 am – 3:30 pm: Evidence Unlocked: Challenging DNA, Use of Experts, Digital Evidence, and More
This in-person only, two-day program will explore key strategies for navigating DNA and digital evidence, giving attendees practical skills and tools to apply to forensic litigation. This event will also include space for connection, conversation, and celebration. For more information and to register, click here. Registration deadline: Monday, September 15th.
Web Training
September 17, 2025, 2:00 – 4:00 pm: Deciphering Data from the Lab: Introduction to Reports in DNA & Toxicology
This free Zoom webinar will be presented by Dr. Nidhi Sheth, Senior DNA Analyst, Criminal Defense Practice, The Legal Aid Society and Ashley Hart, NYSDA Staff Attorney, Discovery & Forensic Support Unit. For more information and to register, click here.
September 23, 2025, 1:00 – 2:30 pm: Administering Justice: Utilizing New York's
Commission on Prosecutorial Conduct in Defense Practice
This free Zoom webinar will be presented by Peter Santina, Managing Attorney, Prosecutorial Accountability Project, Civil Rights Corps, and Nicole Smith Futrell, Professor of Law & Faculty Director, Human & Civil Rights Program, CUNY School of Law. For more information and to register, click here.
| 
