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DWI Practice News
Conviction for Impairment by Drugs Under VTL 1192 Requires Lower Standard of Proof
In People v Dondorfer, 2026 NY Slip Op 00823, the Court of Appeals settled the question as to the standard of proof under Vehicle and Traffic Law article 31 for impairment by drugs as compared to impairment by alcohol, holding that the Legislature intended that the use of the term impairment be applied consistently at the lower standard precluding the use of a higher intoxication-like standard as provided in alcohol related violations. Thus, going forward, evidence of voluntary consumption of drugs that has actually impaired, to any extent, the physical and mental abilities which a driver is expected to possess in order to operate a vehicle as a reasonable and prudent driver, is subject to conviction under VTL 1192(4-a).
Resting firmly on the reasoning of People v Cruz, 48 NY2d 419 (1979), the Court abrogated the salient findings in People v Caden N., [189 AD3d 84 (3d Dept 2020)] and affirmed the decision from the Fourth Department in People v Dondorfer, 235 AD3d 71 (2025), ruling that:
Both the subdivision at issue here, Vehicle and Traffic Law § 1192 (4-a), and the subdivision at issue in Cruz, Vehicle and Traffic Law § 1192 (1), use the term "impaired." Nothing in the statutory language itself indicates that a different meaning was intended for subdivision (4-a). We must therefore presume that the Legislature meant for these identical terms “‘to be used in the same sense throughout’” the same statute.
[Citations omitted.]
NYSDA filed an amici curiae brief, which was joined by the New York State Association of Criminal Defense Lawyers, the Ontario County Public Defender’s Office, the Wayne County Public Defender’s Office, and The Bronx Defenders. Amici argued that the rational in Caden N. should prevail because an interpretation of the language that did not differentiate between levels of impairment by drugs in a similar manner as to the differentiation of impairment by alcohol would lead to unjust results in disposition and punishment. Rejecting that argument, the Court wrote
[T]he “legislative history of the statute and its scheme reveal that the Legislature's intent has been to treat a driver's use of alcohol differently from a driver's use of drugs” ([People v ] Litto, 8 NY3d [692] at 695-696). It is not our role to "second-guess" any policy choice made by the legislature as to the penalties imposed for the various offenses defined in Vehicle and Traffic Law § 1192.
[Citation omitted.]
The New York Pattern Jury Instructions for Vehicle and Traffic Law 1192 (4) and 1192 (4-a) have been amended to reflect the Dondorfer decision.
NYSDA recognizes and appreciates the work of Eric Sills, of Gerstenzang Sills Cohn and Gerstenzang, for his artfully drafted brief on behalf of amici.
Family Court Updates
Court of Appeals: “The rules of evidence apply in Family Court just as much as they apply in any other court.”
In Matter of M.S. (2026 NY Slip Op 00825), the New York Court of Appeals reversed an abuse finding on evidentiary grounds, holding that purported video evidence of abuse had not been properly authenticated and should not have been received into evidence.
The abuse and derivative abuse findings against the respondent mother, M.H., were based entirely on videos that appeared to show M.H.’s ex-boyfriend sexually abusing her daughter in the family home. Federal agents discovered the videos on the computer of B.W., a man unknown to M.H.’s family, who reported hacking into the home’s security cameras and saving video clips of what appeared to be sexual abuse of a minor. At the time of the recovery by law enforcement, the videos had been timestamped two to three years prior. An FBI agent testified to B.W.’s hearsay account of obtaining the videos and that the agent had seen nothing to make him believe the videos had been tampered with or altered. A police officer testified that elements of the video matched his personal observations of the home and family.
A 4-3 majority of the Court of Appeals found that the videos had not been sufficiently authenticated. The Court found the police officer’s testimony matching the video to elements in the home was insufficient circumstantial authentication under People v Patterson, 93 NY2d 80 (1999). Several other considerations factored into the Court’s decision: the lack of testimony from B.W. and the individuals depicted in the video; the unusual circumstances surrounding the video’s discovery; the long gap in the chain of custody; the fact that B.W. had extracted the videos from a longer video feed, during a time when technology to manipulate videos was widely available; and the lack of testimony on the federal agent’s qualifications to identify signs of video alteration and use of forensic tools to assess the videos.
Matter of M.S. provides an important reminder that even when family court judges treat evidentiary rules loosely, family court practitioners should carefully consider evidentiary objections in advance of trial and ensure they preserve issues for appeal. Family defenders with questions on evidentiary and forensic issues can contact NYSDA’s Backup Center at info@nysda.org to consult and brainstorm. Defenders can also review sample motions in limine in NYSDA’s Sample Motion Bank, NYSDA’s online training videos on evidentiary issues, and the Office of Indigent Legal Services’ updated practice resources on evidence in family court.
New York’s Chief Judge Affirms Commitment to Family Court Reform in Annual Address
In his 2026 State of the Judiciary address, Chief Judge Rowan Wilson focused entirely on family courts, highlighting what family defenders have long known—that family courts are in crisis, underfunded and flooded by cases driven by issues, like poverty and mental illness, that courts are ill-equipped to address. The Chief Judge invited individuals affected by family court involvement to share their experiences and he noted that multiple speakers had turned their lives around despite legal systems that claim to aid troubled families, not because of them. His remarks indicated that the changing narrative around family court, propelled by the advocacy of affected families and defenders, has reached the ears of court leadership.
Chief Judge Wilson called for increased funding for both family courts and lawyers to address heavy caseloads, as well as long-term investment in initiatives to support families, like universal childcare, that address root causes of family court involvement. He also noted the Unified Court System’s request that the state fund five new family court mental health treatment parts. The proposed budget further specifies that these would be pilot mental health parts in New York City family courts, focused on supporting youth with mental health issues in juvenile delinquency matters and families with mental health issues in custody and support matters.
Parents File a Class Action Suit Against OCFS
Parents recently filed a federal class action lawsuit alleging that the NYS Office of Children and Family Services (OCFS) is violating due process rights by forcing parents and families to endure “extreme delays” in challenging indicated reports to the Statewide Central Register (SCR). The lawsuit was announced in a press release issued by Brooklyn Defenders, NYU Family Defense Clinic, ACLU, NYCLU, Family Justice Law Center, Center for Family Representation, and Sullivan and Cromwell. It quotes one of the plaintiffs in the lawsuit, Veronica Voe, who is proceeding by pseudonym to protect her and her child’s identities: “Having an indicated SCR report has made it difficult for me to find work and provide for my family.” “The lengthy delay in the appeal process has added immense stress and leaves me concerned about the long-term impact on my reputation.” The full complaint can be found here. An article from the New York Times reporting on the lawsuit can be found here.
NYSDA will be hosting a webinar training in April, presented by Center for Family Representation on what family court practitioners need to know about the SCR. Registration information can be found in the training section below.
Err on the Side of Filing a Notice of Appeal
In Matter of Janey B v Jill C. the court reminds family defenders of the unforgiving nature of the rules regarding notices of appeal. Here, the Third Department rejected an appeal of a family court custody order because the notice of appeal was filed late. “An appeal is taken from a Family Court order by filing an ‘original notice of appeal with the clerk of the family court in which the order was made and from which the appeal is taken,’ then serving that notice upon ‘any adverse party as provided for in CPLR 5515 (1) and upon the child's attorney, if any,’ within the time allowed by Family Ct Act § 1113.” [Citation omitted.] “Although the mother's notice of appeal was dated October 2, 2024, the affirmation of service reveals that the notice of appeal was served on October 4, 2024 — the same day it was filed with the clerk of Family Court. Given that this was beyond the 35-day period, ‘the mother's appeal is untimely and, as the applicable statutory time bar is absolute and not subject to extension, this Court lacks jurisdiction to entertain it.’” [Citation omitted.]
It is best practice to notify your client in writing of their right to appeal anytime an order is issued. If there is doubt about whether there is an appealable issue or if the client is unsure of whether they want to proceed with an appeal, the attorney should always err on the side of filing the notice of appeal. See NYS Indigent Legal Services Standards – Parental Representation in State Intervention Matters, Standard R-1 (“After an appealable order is entered, counsel must: R-1. Preserve client’s right to appeal. File the necessary documents to preserve the client’s appellate rights unless the client decides not to appeal.”). Those with questions are encouraged to email NYSDA’s Public Defense Backup Center at info@nysda.org.
Forensic Highlights
The Digital Fourth Amendment: The Carpenter Adjustment
In 2018, the Supreme Court of the United States made a pivotal decision in Carpenter v United States, 585 U.S. 296 (2018), holding that the government’s seizure of a person’s CSLI (cell-site location information) from a cell phone company constitutes a search under the Fourth Amendment, requiring a warrant. Since the ruling in Carpenter, however, lower courts seem to be at a loss as to how to apply this holding to other technologies.
The recently-posted Chapter 9 of the Digital Fourth Amendment: Privacy and Policing in Our Online World, by Orin Kerr, law professor at Standford University, attempts to make sense of Carpenter and provide a test for lower courts to apply when faced with new investigative technologies. The three prongs of this proposed test are: 1. The records are of a “new” type made available by the digital world; 2. the information contained in the records is that which reveals “the privacies of life”; and 3. the generating of the records is “unavoidable.”
Kerr proposes that the limitation of Carpenter to new, digital forms of record keeping is consistent with the Court’s reasoning, wherein Chief Justice Roberts, writing for the majority, wrote that the holding in Carpenter does not “‘call into question conventional surveillance techniques and tools, such as surveillance cameras.’” Furthermore, argues Kerr, Carpenter establishes a recognition by the Court that digital networks are different, and should be analyzed as such.
Next, Kerr proposes that the records be of the sort of digital records that are unavoidably generated by cellphone companies. In other words, they contain information which a consumer has no voluntary choice but to provide. Kerr argues that if the consumer has to opt in to the sharing on the information contained in the records or has an easy option to opt out of sharing it, Carpenter should not apply.
Finally, Kerr proposes that to constitute a search under Carpenter, the kinds of information contained in the records sought are those which reveal “the privacies of life,” as the Court expressed concerns over in both Riley v California, 573 U.S. 373 (2014) (holding that the warrantless search of a cellphone during an arrest and seizure of digital contents violated the fourth amendment) and United States v Jones, 586 U.S. 400 (2012) (holding that the government’s use of a GPS tracking device on a person’s car without a warrant constitutes an unlawful search under the fourth amendment). In Carpenter, the Court reasoned that cell-site location information provide an “intimate window into a person’s life,” which have no legitimate state interest.
After making the case for this three part test, Kerr goes on to apply it to some important scenarios that are arising in the lower courts, including log-in IP addresses, the monitoring of web surfing, the obtaining of ride sharing records, geofencing, and reverse keyword searches.
As new technology continues to emerge, it will be important for defenders to continue to consider its implications to our rights under the Fourth Amendment and the New York State Constitution. Carpenter is likely just the beginning.
Rise of Big Data, Rise of Privacy Concerns
In his latest book, Your Data Will Be Used Against You: Policing in the Age of Self-Surveillance, George Washington University Law School Professor Andrew Guthrie Ferguson details concerns about our wearable and other tech surveilling us well-beyond the bounds of what was contemplated under the Constitution. With the rapid advancement and access to technology from smart phones, watches, home cameras and even medical devices like pacemakers, privacy laws have failed to keep up as this data is used to prosecute. Professor Ferguson has appeared on Texas Public Radio and on the Back in America podcast to discuss these issues that parallel the expansion of police surveillance and real time crime centers, all of which you may encounter with higher frequency in your cases. Last spring, he presented a webinar for NYSDA on AI Analytics and 4th Amendment Challenges, available on-demand for CLE credit for members.
Featured Hightlights
ILS Releases Statement on 2025 Legislative Amendments to Electronic Appearances
As discussed in the May 14, July 14, and September 4, 2025 editions of News Picks, last year CPL article 182 and Executive Law 832(4) were amended to broaden electronic appearances. The law included a provision directing the Chief Administrative Judge to adopt rules regarding electronic appearances under article 182.
According to the July 2025 OCA request for public comment on the proposed rules, the new CPL article 182 “modernizes and expands the court system’s authority to utilize virtual appearances during criminal proceedings.” It “will allow for the use of virtual appearances at evidentiary hearings, pleas, and sentencings statewide, but only with the consent of the defendant after conferral with their attorney or legal advisor.”
In August 2025, NYSDA submitted comments on the proposed rule. We pointed out ways in which the OCA proposal and the law itself 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.
On March 2, 2026, the Office of Indigent Legal Services (ILS) released this statement on the 2025 amendments to “provide[] guidance and clarification on conducting electronic arraignments in light of the changes in law and court rules.” Despite the legislative changes, ILS reiterated their “funding [can] be used for electronic arraignments only when we are confident that conducting the arraignment electronically does not diminish the quality of representation.” Part of that calculus is that even if an electronic appearance is permissible under the new CPL 182.20, “Defense counsel must fully advise clients on the potential advantages and disadvantages of conducting an arraignment electronically.” Absent a client’s “specific consent after consultation with counsel, arraignments are to be conducted in person.”
Finally, “ILS encourages institutional defender offices and assigned counsel programs to develop written policies addressing electronic appearances, including arraignments, and to work with ILS on how best to implement these policies.” For more information on the potential perils of virtual and remote proceedings and the importance of client consent, please see NYSDA’s resource page on the subject.
Commission on Prosecutorial Conduct 2026 Annual Report
The New York State Commission on Prosecutorial Conduct (CPC) was formed in 2021, pursuant to Judiciary Law §§ 499-a – 499-j. Its eleven non-salaried members are appointed by the Governor, the Chief Judge, and the legislative majority and minority leaders. The Commission’s authority is in the review and investigation of complaints regarding the conduct and performance of the official duties of a prosecutor in New York’s 62 counties. The Commission released its 2026 Annual Report on February 27th, covering the period of January 1 through December 31, 2025.
Complaints to the CPC may be submitted through an online portal as well as through the mail. The CPC saw a major uptick in complaints received from 2024 to 2025—from 131 to 348, respectively. Of these complaints, the CPC has been able to respond to 35.3%, resulting in just one recommendation for public censure involving the Monroe County District Attorney, Sandra J. Doorley. One hundred fifty-one complaints were dismissed in 2024 and 2025. According to the report, the majority of the 2025 complaints were made by “Criminal Defendant[s]” and “Citizen[s],” a large majority of which alleged abuse of discretion.
Last fall, NYSDA presented a webinar on using the Commission on Prosecutorial Conduct in Defense Practice. A recording of the webinar is available for viewing by NYSDA attorney members in our on-demand CLE catalog. We thank Peter Santina, Civil Rights Corps, and Professor Nicole Smith Futrell for presenting this important topic.
When Courtrooms Undermine Public Defenders: Everyone Suffers and Other Experiences of Black and Non-white Warriors in Law
When Orayne Williams, a social worker at The Bronx Defenders and Director of their Adolescent Defense Project, walked into the Youth Part of Bronx Supreme Court one morning recently, as he does many mornings, he was met with hostility from a sergeant who barked at him, “Are you an attorney?” Orayne explained his role, but she pressed further, “I didn’t ask you that! Are you an attorney?” She went on to forbid Orayne from sitting in the front row of the courtroom, claiming that it was for attorneys only—not standard procedure in the Bronx. While he waited, Orayne watched as an interpreter sat down in the front row without issue.
In his opinion piece written for the Bronx Times, Orayne goes on to reflect on the number of ways that non-white advocates, particularly social workers, are disparaged in the courtroom and treated as outsiders. All of this is done in front of their clients, and everyone else’s clients, who are often also not white, and who can internalize that these professionals and advocates are being discriminated against much in the same ways that they, too, can expect from court staff and even judges. Orayne makes the case that when public defender teams are disrespected and treated inhumanely, the entire system is degraded.
In his 2025 book, Warriors in Law: Black Attorney Profiles of New York City Public Defense, Zamir Ben-Dan—a former public defender in the Bronx, now professor of law at Temple University—interviewed and writes about the experiences of Black attorneys working in the legal system, and the indignities of racism they face day after day just to do their jobs.
As Orayne advocates in his editorial, courts must implement clear policies and rules, and court staff must be trained in “human service and basic respect.” Attorneys and white colleagues can also stand in solidarity with non-attorney advocates and members of the defense team by pushing back on this racism and classism when they see it playing out in real time—if the social worker on your team is barred from sitting in the front row, join them in the back and bring it to the court’s attention.
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