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DVSJA and Trauma-Informed Advocacy
DVSJA and Related Cases of Interest at the Court of Appeals
People v Mitchell (People v M.)
In People v Mitchell, the Second Department affirmed the denial of a DVSJA guideline sentence in an assault case where it was determined that the trial court had correctly found that the PL 60.12 applicant was a victim of domestic violence but that, “[i]n light of the evidence that the victim was a stranger to the defendant, the defendant was no longer in an abusive relationship and did not have any contact with her abuser on the date of the offense, and the immediate circumstances of the crime, the defendant failed to establish by a preponderance of the evidence that her history of abuse and PTSD was a significant contributing factor to the assault.” (Citations omitted.)
Associate Justice Troutman granted leave to appeal to the Court of Appeals on August 27. Important considerations in the appeal are anticipated to include an examination of how a prior relationship – or lack thereof – between an accused and complainant impacts the availability of the ameliorative guidelines, and how the lingering impact of a confirmed history of abuse, even when there has been a period of separation between the survivor and abuser and where the abuser is not involved in the offense, may contribute to particular criminal behavior.
People v David T
Justice Troutman also previously granted leave to appeal to the Court of Appeals from the Third Department decision in People v David T. This case presents several discrete but interwoven procedural issues. The Appellate Division initially stated that the issue of the denial of a PL 60.12 hearing was not preserved for review for lack of asking the County Court for relief prior to or at the plea proceedings, then went on to explain, “At sentencing, defendant, who was represented by counsel, made extensive pro se remarks asking the court to impose the sentences concurrently with his prior sentence, and to consider whether he qualified under the DVSJA, the first mention of alternate sentencing; he did not request a hearing and defense counsel made no such request or reference to the DVSJA. Contrary to defendant’s claim, he was not denied an opportunity to establish his eligibility for mitigated sentencing under the DVSJA. Moreover, Penal Law § 60.12 does not require a court to conduct a DVSJA hearing ‘in every case containing allegations that the defendant is a victim of domestic violence, regardless of whether a hearing was requested.’ Under these circumstances, in the absence of a request for a hearing, County Court had no affirmative duty to conduct a hearing.” (Citations omitted.)
It is anticipated that review may include consideration of what constitutes a valid request for a 60.12 hearing and by whom, whether a request can be forfeited or waived if made after a plea is entered but prior to the imposition of sentence, and what obligations to inquire does a sentencing court have when presented with allegations of domestic violence as part of a sentencing proceeding in connection with a request to consider the DVSJA.
People v Hannah T.
In July 2025, the Fourth Department issued a decision in People v Hannah T., in which they sua sponte exercised their interest of justice authority to modify and reduce a sentence in a case in which a valid waiver of appeal was found and it was determined there was no abuse of discretion by the sentencing court in declining to impose a Youthful Offender adjudication. The basis for the sentence reduction was a review of the defendant’s history laid out in the record that revealed extensive domestic violence and abuse, and while a DVSJA sentence had not been sought in the trial court, and a review of the sentence was not sought on appeal, the Appellate Division determined on its own authority that justice demanded a less harsh sentence.
The Court of Appeals granted leave to appeal to the prosecution challenging the authority of the Appellate Division to exercise its interest of justice jurisdiction under the circumstances and confer a sentence reduction in the wake of a valid waiver of appeal.
The case was argued before the Court of Appeals on September 17; watch video here. Questions from the bench indicated that the Court was interested in whether People v Seaberg and People v Lopez categorically proscribed the Appellate Division’s authority to sua sponte consider and decide matters that may otherwise be considered foreclosed as viable appealable issues if raised by an appellant. Also discussed was the question of whether allowing such sua sponte review of issues otherwise foreclosed would open floodgates and/or render statutory and precedential limitations on reviewability inconsequential.
NYSDA will monitor these cases and provide information when available.
Recognizing and Confronting Post-Incarceration Syndrome (PICS)
Inquest.org recently published Diagnosing the Trauma of Incarceration, an article contributed by James A. Sheffield, a writer serving fifty-two years to life for second-degree murder at Sing Sing Correctional Facility in Ossining, New York, and a junior studying behavioral science at Mercy College.
In the piece, Mr. Sheffield decries that although not currently formally recognized as a psychological disorder in the American Psychiatric Association’s Diagnostic and Statistical Manual (DSM V), which identifies specific examples of trauma leading to PTSD such as combat and torture, there is little doubt that the experiences of violence, mistreatment, and neglect in our prisons leave lasting psychological scars on incarcerated individuals, and those reentering the community from prison have little or no access to therapy, medication, or protection, leading to a plethora of potential adverse consequences.
Defenders are urged to learn more about PICS and the traumatic impact of incarceration on our clients to develop effective advocacy skills as we face the possibility of our clients going to prison or as we may be working with or representing them on matters arising in prison or responding to issues arising during reentry and under parole supervision. The application of the discipline is wide-ranging as Mr. Sheffield notes, “If PICS were formally recognized as a psychiatric disorder, it could improve access to medications and therapy by making treatment eligible for insurance coverage. Formal recognition could also provide protections against discrimination in employment and, in some cases, housing under existing disability laws, including the Americans with Disabilities Act for individuals whose symptoms substantially limit major life activities. Over time, such recognition could even begin to reverse the social stigma of incarceration in the U.S. consciousness.”
Additional informative resources include:
*Research Roundup: Incarceration can cause lasting damage to mental health
Prison Policy Initiative, by Katie Rose Quandt and Alexi Jones, May 13, 2021. Incarceration can trigger and worsen symptoms of mental illness — and those effects can last long after someone leaves the prison gates.
*From Prison to Home Project, Office of the Assistant Secretary for Planning and Evaluation (ASPE)
“The ‘From Prison to Home’ project had four major components. First, ten papers were commissioned to develop a research and practice baseline about this high-risk, high-services use population. Second, a state symposium was held in November 2001 to gain insight into how states are responding to these issues. Third, a national policy conference was held on January 30-31, 2002 at the National Institutes of Health (NIH) to discuss the papers and get feedback from policy makers at the federal, state and local level, from practitioners, and from the research community. …. The conference report constitutes the fourth component of the effort. The report synthesized key aspects of the state symposium discussions, conference proceedings, and the research papers developed for it.” Publication of the conference papers and report is intended to encourage continuing discussions about cross-program and multi-disciplinary research and the planning and implementation of service delivery efforts at the federal, state, and local levels.
*Chronic Punishment: The unmet health needs of people in state prisons
Prison Policy Initiative, by Leah Wang, June 2022
“Instead of ‘rehabilitating’ people in prison (physically, mentally or otherwise), or at the very least, serving as a de facto health system for people failed by other parts of the U.S. social safety net, data from the most recent national Survey of Prison Inmates show that state prisons are full of ill and neglected people. Paired with the fact that almost all of these individuals are eventually released, bad prison policy is an issue for all of us — not just those who are behind bars.”
*From Prison to Home: The Effect of Incarceration and Reentry on Children, Families, and Communities
This paper examines the unique set of psychological changes that many prisoners are forced to undergo in order to survive the prison experience. … the ordinary adaptive process of institutionalization or “prisonization” has become extraordinarily prolonged and intense. A range of structural and programmatic changes are required to address these issues. … modified prison conditions and practices as well as new programs are needed as preparation for release, during transitional periods of parole or initial reintegration, and as long-term services to ensure continued successful adjustment.
Treatment of Traumatic Brain Injury May Reduce Recidivism, Study Shows
The Indiana University School of Medicine announced on August 26 that a team of scientists there “have developed and tested a new intervention for incarcerated people suffering from traumatic brain injuries, with the new tactic already showing promising results in keeping offenders from returning to prison or facing repeat arrest.” Approximately half of a study group of incarcerated men “were given education on brain injuries, coping skills training, anger and aggression management, in addition to 12 months of post-release neuro case management … returned to prison at a lower rate (17%) than the control group (46%).” A lower rate of rearrest was also found. The abstract of the paper is found in the Archives of Physical Medicine & Rehabilitation of the American Congress of Rehabilitation Medicine. A key “selling point” from the study is included in the title of the announcement: Traumatic brain injury support decreases likelihood of returning to prison, saves taxpayer money. If helping human beings is not an inducement to expanding such work, saving tax dollars apparently may be.
Assistance is Available from NYSDA
Attorneys are reminded that information and resources are available on NYSDA’s DVSJA Resources webpage, and defenders seeking particular assistance or resources related to the DVSJA are encouraged to reach out to NYSDA’s DVSJA Attorney Support Project by contacting Senior Staff Attorney Stephanie Batcheller at SJBatcheller@nysda.org or (518) 465-3524 x 41. For more resources and assistance related to trauma informed advocacy, contact NYSDA via email to info@nysda.org or use our website contact form here. For attorneys representing someone who is currently or has served in the military, please contact our Veterans Defense Program at 585-219-4862 or use the VDP contact form here.
Family Court Updates
OCA Proposes to Make Family Court E-Filing Permanent
The Office of Court Administration (OCA) is seeking public comment on a proposed regulation that would establish permanent rules governing statewide e-filing in family court. Variations of e-filing have been available since Aug. 10, 2022, as a result of a pilot program. The OCA memo requesting comment explains in part, “[T]he new rules are intended to address gaps identified during the pilot, and incorporate the requirements needed for mandatory e-filing as Family Court expands its use of the NYSCEF program to additional courts and case types.” The deadline for email comment submission is November 23, 2026. Information on proposed rule 22 NYCRR § 205.7-c, as well as comment submission instructions, can be found here.
Two Family Offense Petitions Dismissed in Family Court for Different Reasons
While the Penal Law is rarely mentioned in family court, it does apply in family offense cases, which are enumerated in Article 8 of the Family Court Act. In Matter of Leviene v Horrell, the Second Department found reversible error with the trial court’s determination that the respondent committed the act of disorderly conduct (see Penal Law 240.20) against the petitioner. “In a family offense proceeding, the petitioner has the burden of establishing the family offense by a fair preponderance of the evidence.” (Citations omitted.) The court continued, “Contrary to the Family Court’s determination, the evidence failed to establish that the appellant committed the family offense of disorderly conduct, as there was insufficient evidence to establish that the appellant’s conduct was committed with the intent to cause, or recklessly posed a risk of causing, public inconvenience, annoyance, or alarm.” (Citations omitted.)
In another decision issued on the same day, Matter of Monahan v Zindman, the Second Department vacated an order of protection for lack of subject matter jurisdiction, finding that the parties were not “members of the same family or household” as required by FCA 812(1). The court opined, “The Family Court is a court of limited jurisdiction, and thus, it ‘cannot exercise powers beyond those granted to it by statute.’” (Citations omitted.) Pursuant to FCA 812(1), “jurisdiction in family offense proceedings is limited to certain prescribed acts that occur ‘between spouses or former spouses, or between parent and child or between members of the same family or household.’” (Citations omitted.)
Regardless of whether family defenders are representing the petitioner or respondent, it is best practice to read FCA article 8 prior to engaging in representation of a family offense litigant. Family offense cases are among the most technical in family court, making them ripe for motion practice throughout the proceedings. Those with any questions on this or any other topic are encouraged to email info@nysda.org for a case consultation.
Remember Family Court Act 1061 to Get Neglect Findings Vacated
In Matter of Nila P., the Second Department found reversible error with the trial court’s refusal to grant a suspended judgment and vacate a finding of neglect for good cause shown and consistent with the best interests of the child, where the mother had no prior CPS history, showed good insight, and demonstrated compliance with all orders. In its decision, the court reminds us that “[c]ourts have identified four factors to consider when determining whether to vacate a finding of neglect: ‘(1) respondent’s prior child protective history; (2) the seriousness of the offense; (3) respondent’s remorse and acknowledgment of the abusive/neglectful nature of his or her act; and (4) respondent’s amenability to correction, including compliance with court-ordered services and treatment’.” (Citations omitted.) Family defenders are encouraged to utilize FCA 1061 whenever appropriate. A motion pursuant to section 1061 is available on NYSDA’s motion practice page.
Forensic Highlights
Defenders Oppose the Use of a New DNA Analysis Technique in the Absence of Guardrails
The New York State Police Forensic Investigation Center in Albany has internally validated a new DNA analysis method that has broad-ranging implications for privacy of genetic information and data. The method known as “next generation sequencing” or “massively parallel sequencing” analyzes single nucleotide polymorphisms (SNPs), which may be linked to information about a person’s health, appearance, and lineage. The State Police Lab will work with as-yet-unidentified third-party genetic genealogists to perform analyses, tying information from the lab’s DNA analysis to family trees. Files will be uploaded to GEDMatch PRO, a law enforcement arm of the direct-to-consumer (DTC) DNA family tree brand. This process has been used to identify missing persons and can link family members who are in the GEDMatch database to DNA found at alleged crime scenes. We’ve seen this in Idaho with the Kohberger case and here in Suffolk County with a Frye hearing in the Heuermann case.
Importantly, in Kohberger, when local Idaho law enforcement reached a dead end because potential relatives refused to give DNA samples, the FBI took over the case and used DTC databases where users specifically did not opt into law enforcement use of their DNA. This is the exact scenario NYSDA and other defenders fear will happen to New Yorkers if this method is allowed to be implemented by the State Police Lab in the absence of additional action from the legislature; an increased reliance on privately owned companies to assist law enforcement investigations without oversight and without disclosure.
When the State’s Commission of Forensic Science moved for a public hearing, defenders and advocates were quick to act. Along with The Legal Aid Society, Brooklyn Defender Services, Bronx Defenders, the Perlmutter Center for Legal Justice, and others, NYSDA worked together on a joint letter and provided oral testimony at the public hearing before the state Commission of Forensic Science on October 9th. Ashley Hart of NYSDA’s Discovery and Forensic Support Unit provided the testimony. NYSDA’s testimony and a Joint Defender Letter are linked on our website and all statements submitted as testimony are viewable to the public here. The Commission heard from eight panels at the hearing: four of which represented proponent, prosecution, and victim voices; and four others were defender and opponent voices. Video of that public hearing is available for viewing. While the Commission’s next meeting is in December, we encourage you to contact your legislators to inform them of this issue. We will follow this closely and provide updates. Contact Ashley Hart, ahart@nysda.org, with any questions.
Immigration Updates
WNY RIAC Newsletter Provides Information On Removal Issues and More
The Western New York Regional Immigration Assistance Center (WNY RIAC), in its October newsletter, presents “Preserving the Best Defense for a Permanent Resident in Removal Proceedings.” The article describes Cancellation of Removal for Lawful Permanent Resident and its limitations. Decisions from the Board of Immigration Appeals are cited that demonstrate the current dire situation for immigrants who are in the U.S. lawfully: “removal is a consequence applied to even those who have resided here lawfully since childhood, with continued and significant family ties in the United States and little familiarity with their home countries.”
Another newsletter item is entitled “Restitution Order Can Support Aggravated Felony Finding in Removal Proceedings.” Where a plea colloquy referred to an amount of $3,450, but the restitution order and judgment of conviction identified the total loss related to the conviction as $345,100, the Board of Immigration Appeals relied on the latter figure. The takeaway: “When negotiating a disposition in a fraud case, defense counsel should be aware of any potential restitution that may be ordered before entering a plea.”
Other topics addressed include a cellphone search at the border, disclosure of an arrest that occurs while some type of application regarding an immigration benefit is pending, and obtaining a bond in removal proceedings. NYSDA thanks WNY RIAC for providing the newsletter and reminds family and criminal defenders to determine whether any client was born outside the U.S. and if so to contact the RIAC for their region. See https://nyriac.com/.
Featured Highlights
Amendment Proposed to Rule of Professional Conduct Regarding Representation of Clients with Decision-Making Limitations
On October 1st, the Unified Court System website posted a proposal to amend Rule 1.14 of the Rules of Professional Conduct relating to clients with decision-making limitations. The current rule is addressed to representation of a “Client with diminished capacity.” That rule being almost identical to the former American Bar Association (ABA) Model Rule 1.14, the Committee on Standards of Attorney Conduct (“COSAC”) of the New York State Bar Association has recommended that changes adopted by the ABA to that rule be adopted verbatim. The changes are intended “to make clear that lawyers should take protective action on behalf of clients with decision-making limitations only in very limited circumstances.”
Proposed changes include replacing “client with diminished capacity” with “client with decision-making limitations”; changing “conventional relationship” to “ordinary client-lawyer relationship”; “providing enhanced guidance to attorneys representing individuals with surrogate decision-makers; making clear the intent is not “to encourage attorneys to pursue guardianships or conservatorships for their clients”; and to clarify that disclosing information about the clients in question “is permissible when the lawyer reasonably believes that the criteria for taking protective action are met and the disclosure is necessary to protect the client’s interests.”
The posted memorandum includes attached exhibits containing the proposed amendments and a memo from the State Bar President discussing the proposal. Note that as to the change in wording about the “client-lawyer relationship,” the actual proposal, in Exhibit A, addresses the existing rule that uses “conventional” as noted above, while the bullet point in the memorandum refers to other phrasing that used the word “normal.” Comments must be received no later than Friday, Nov. 23, 2026. They may be emailed to rulecomments@nycourts.gov or mailed to: David Nocenti, Esq., Counsel, Office of Court Administration, 25 Beaver Street, 10th Fl., New York, New York, 10004.
New Criminal Penalties in Albany County for Multiple E-Bike and E-Scooter Violations
The Albany County Code was amended on October 14 to criminalize multiple violations of laws regarding the use of electric scooters and bicycles with electric assist. Chapter 288-19 through 288-24 encompass these laws and the full text of the law is available in the hyperlink. Parents and legal guardians of any unemancipated person under 18 years old are responsible for paying fines and restitution. Diligent supervision is not a defense. Reckless operation, operation under the influence, and fleeing a police or peace officer carry fines up to $300 and potential jail time of up to 15 days for initial violations. Additional violations during certain timeframes lead to steeper penalties. Three violations within a five-year period may lead to a misdemeanor charge with a $1,000 fine and/or up to 180 days in jail. Subsection 288-22 (E) (2) sets an intoxication limit for alcohol of 0.08% while Subsection 288-22 (E) (3) deals with intoxication or impairment by drugs. Subsequent violations include additional fines and potential criminal consequences as follows:
“Any person who violates § 288-22 (E) (2) or (E) (3) of this article shall be guilty of a misdemeanor punishable by a fine not to exceed $500, or by imprisonment of up to a year in county jail, or by both such fine and imprisonment. A second violation within a ten-year period of § 288-22 (E) (2) or (E) (3) of this article shall be guilty of a class E felony and punished by a fine of up to $1,000, or by imprisonment as provided in the Penal Law, or by both such fine and imprisonment, and forfeiture of the electric scooter or bicycle with electric assist material to the offense. A third or subsequent violation within a ten-year period of § 288-22 (E) (2) or (E) (3) of this article shall be guilty of a class E felony and punished by a fine of up to $4,000, or by imprisonment as provided in the Penal Law, or by both such fine and imprisonment, and forfeiture of the electric scooter or bicycle with electric assist material to the offense.”
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