|
Forensics Updates
Legal Aid Society Hosting Questioning Forensics January 29 & 30 in Manhattan
On January 29 and 30, our colleagues at The Legal Aid Society are hosting the 11th Annual Questioning Forensics: “Déjà vu All Over Again: New Methodologies, Same Old Story.” Registration, which includes CLE credit and light refreshments, is free for public defenders (including assigned counsel) and $250 for private attorneys. For the full schedule and registration, click here. From LAS: “This year’s conference will explore new and ongoing developments in forensics with a special focus on understanding and litigating the limitations of these methods. You will hear from leading forensic scientists and practitioners on everything from rapid DNA to proteomics, learn strategic ways of litigating firearm toolmarks in hearings, gain an understanding of how activity level testimony and reporting may show up in your practice, and so much more!”
Medical Examiners Criticize Infant Lung Float Test as Dangerous
The non-standardized “lung float test” or hydrostatic test has repeatedly been called into question for over a decade by medical and forensic professionals. Now, after a 2023 investigation by ProPublica and following a position paper published by the National Association of Medical Examiners (NAME), the so-called “test” has resurfaced with all its “known pitfalls.” According to a December 29th ProPublica article, “[t]he premise behind the lung float test is simple: If a baby was born alive and then died, air from its first breaths would cause its lungs to float in a jar with water. If the baby was stillborn, the lack of air in the lungs would cause them to sink.”
The authors and critics likened the use of this finding* to witch trials. In its October 2025 position paper “on the investigation and certification of fetal demise, stillborn, and early neonatal deaths”, NAME summarized the lung float finding as an autopsy finding instead of a true test because it cannot be replicated or verified after the initial autopsy. This contrasts with other autopsy findings on slides or photographs. The NAME authors concluded that the lung float autopsy finding should be interpreted in combination with other findings and not be the only factor in determining whether the infant was stillborn. Reading between the lines, the authors included insight for any cross-examination of medical examiners—many who are not forensic experts—who determine the manner of death a homicide solely based on the lung float finding. Overall, the article and position paper are noteworthy to discuss with your experts when you have a case involving infant, fetal, or neonatal death.
* Here we used the word “finding” instead of “test” to (1) be consistent with the wording used by the authors of the NAME opinion paper and (2) control the language we use to help you educate your bench and jurors. Using “finding” instead of “test” may prove useful in teaching your audience about the realities of junk science and its often-conclusory language. Much like “transfer” (instead of “touch”) DNA, we want to encourage you to control the narrative and the use of your own defense vernacular.
Flock Safety Exposed Its AI-Powered Cameras to the Internet
404 Media reported some disturbing news that at least 60 of Flock Safety’s artificial-intelligence-powered cameras were fully accessible to anyone with an internet connection. For a period, several random Flock Condor pan-tilt-zoom cameras could be accessed to watch remotely on a home device. Without any log-in information, a user could also download a month’s worth of archived video, change settings, and accomplish other administrative tasks while Flock inadvertently left the system open. 404 Media noted that this was not the first time a security snafu happened for a company like Flock nor will it be the last. Flock’s Condor cameras are designed to surveil people, not license plates, and are deployed across the country to monitor parking lots, playgrounds, intersections, and many other public spaces. While the Flock company rushed to assure the public that its systems were not hacked, that did little to calm the nerves of those of us concerned with security and privacy. As stated succinctly by Cooper Quintin, senior staff technologist at the Electronic Frontier Foundation, “Law enforcement should not collect information they can’t protect. Surveillance technology without adequate security measures puts everyone’s safety at risk.”
Featured Highlights
Legal & Ethical Implications of Artificial Intelligence Meeting Assistants
A recent article on Law.com reminded us of legal and ethical concerns when using artificial intelligence (AI) assistants to attend virtual meetings. While AI may be appealing and seem like a time-saver, please see NYSDA’s AI Starter Guide and the American Bar Association’s Formal Opinion 512 for guidance before thoughtfully questioning whether to implement it in your practice. Brewer v Otter.ai, a class-action lawsuit in the Northern District of California last August, commenced with a complaint alleging in part that the use of an AI assistant during a video-conference meeting could result in indefinite storage and use of recordings potentially for use to train AI models and amounts to federal wiretapping and computer access violations.
Using an AI assistant to attend a confidential meeting waives that confidentiality. These types of AI tools often record and transcribe audio and even video live. Wiretapping statutes may be implicated when a participant in a virtual meeting joins from an all-party consent jurisdiction. While this may not apply in your practice or during confidential virtual meetings with clients, privacy laws may still be waived when a user implements an AI assistant that may record, transcribe, and later use that transcript to “train” speech-recognition and generative AI models. Further, recording, transcribing, and saving in this way may also create discoverable information you do not want to share. For any questions about our AI Starter Guide, please contact our Backup Center at info@nysda.org.
AI Police Reports Are Here and Require Scrutiny
According to a recent report in Forbes, an AI generated police report in Heber City, Utah claimed that an officer shape-shifted into a frog. The Heber City Police Department blames the magical-realist report on confusion created by Disney’s the Princess and the Frog playing in the background of the body-worn camera footage from which the report was generated. Axon, which provides body worn camera systems to law enforcement agencies around the country and in New York State, introduced Draft One, its AI generated police report software, in early 2024, touting the time it would save officers from writing reports to doing “real police work”. The software is meant to have AI generated reports drawn up from the audio on body-worn cameras, which is precisely what led to the easily identifiable error in Utah. Draft One’s default settings limit the early use of these reports to minor incidents, while their blog highlights that these reports are “drafts” that should not be considered final reports and safeguards like audit trails detailing who recorded what, when, and from which evidence; however, independent investigations have cautioned that these audit trails are extremely difficult to parse and that agencies are turning off the default settings limiting what kind of cases these reports can be used to write, instead using them to write reports on major felonies. While the shape-shifting officer is an over-the-top example of the issues that can arise with AI generated reports by law enforcement, the bottom line is there is sure to be other issues with the information in these reports and a lack of transparency, accountability, and oversight that seems likely to benefit the State.
Cases of Note
Kings County Trial Court Finds Payton Violation in Warrantless Search of Client’s Room at Transitional Shelter
In People v Maquila (2025 NY Slip Op 25270 [12/17/2025]), a Brooklyn Supreme Court judge found that a warrant was necessary to enter a client’s room at a shelter. The client had a reasonable expectation of privacy where “the setup explicitly included a locked room for whom the defendant was the only assigned occupant; and the record supports the conclusion that the assigned space had a door and a lock.”
Because the client’s room was therefore a “constitutionally protected space,” officers’ warrantless entry was unconstitutional under Payton and any physical evidence found inside must be suppressed.
Manhattan Judge Finds OMH in Contempt, Imposes Fine Payable to the Accused
In a recent Supreme Court case out of Manhattan, People v S.O. (87 Misc 3d 1252[A] [12/12/2025]), Judge Cori Weston found the Office of Mental Health in civil contempt of a court order and imposed a fine of $100 per day payable to S.O. and $250 in legal fees. Subsequent to a finding that he was unfit to proceed, on July 16, 2025, Judge Westin ordered that S.O. be transferred to the custody of OMH for restoration no later than August 16, 2026. Counsel for S.O. filed an order to show cause as to why OMH was not in contempt of this order when on September 16, 2025 S.O. was still on Rikers Island. OMH opposed. On October 16th, the Court held a hearing after which it determined that OMH was in contempt of the court’s previous order. The parties requested time to brief the issue of damages with the Court ultimately imposing the daily fine payable to S.O., to be applied retroactively to Aug. 16, 2025, and legal fees.
Immigration News for Defenders
WNY RIAC January Newsletter- New Format for Immigration News
The Western New York Regional Immigration Assistance Center (WNY RIAC) issued the January 2026 edition of its newsletter with a new format and news that includes a recounting of 2025 Key Immigration Decisions for the Supreme Court Shadow Docket. While valid only while the cases proceed through the courts to a final merits decision, these decisions provide guidance to lower courts in the interim—and a look into the Supreme Court’s thinking. The issue also includes links to information on green card reviews triggering removal of people found to have committed crimes after gaining permanent residence; a halt on processing of asylum requests by all people and of benefit requests by people from counties under an Administration travel ban; and more. NYSDA thanks WNY RIAC for the information it provides to the public defense community. Defenders are once again reminded to inquire of every client as to country of their birth and to contact the RIAC in their region if the client was born outside the U.S. or in the U.S. to citizens of other countries.
Family Court Updates
Four New Family Defense Model Offices to Open in 2026
The Office of Indigent Legal Services (ILS) recently announced that four counties in NYS will be receiving money to open Model Family Representation Offices. According to the ILS website, the purpose of the grant is to “implement standards and best practices for the representation of people in Family Court matters pursuant to County Law Article 18-B.” Those looking for more information about the RFPs can find it on the ILS website, here. Chautauqua, Onondaga, Orange, and Schenectady Counties will each receive 3 million dollars over three-years to implement the “model offices.” This will make a total of six counties receive funds to provide timely and holistic representation to parents caught up in the family regulatory system. The other two counties that have been operating model offices for a few years are Westchester and Monroe.
Prior Neglect Finding is Not a Bar to an Award of Custody
In Matter of Johnathan S. (2026 NY Slip Op 00013 [1/6/2026]), the First Department upheld an award of joint custody to the mother and father of the subject child, concluding there was sound and substantial record support for the determination that both parents were fit custodians. The court opined that, “a prior finding of neglect against the mother is not necessarily a bar to her being awarded custody. That is especially true where, as here, the court addressed the mother’s proactive and remedial measures put in place to address the circumstances which previously led to the child being removed.” [Citation omitted.]
Defending Against an Award of Attorneys’ Fees in Family Court
Family defenders often struggle with how to handle an application for attorney’s fees, especially when faced with the harsh reality of FCA 438(b), which provides that an award of attorney’s fees shall be ordered in favor of the attorney for the petitioner where the respondent is found in willful violation of an order of support. This language does not tell the whole story. The fees must always be reasonable. In Matter of Musarra v. Musarra (28 AD3d 668 [2d Dept 2006]), the court reduced the amount of fees by $7,000, calling the original award of $10,000 unreasonable. The Musarra court continued, “Factors to be considered in computing an appropriate award of an attorney’s fee include the parties’ ability to pay, the nature and extent of the services rendered, the complexity of the issues involved, and the reasonableness of the fee under all of the circumstances.” [Citation omitted.]
In a recent article featured in Law.com, Support Magistrate Sondra Mendelson-Toscano sought to clarify the issue of fees in all support cases, writing that an award of attorney’s fees in all cases other than support violations is discretionary and based upon the totality of the circumstances. “Attorney fees applications in child support cases must make a prima facie showing of substantial compliance with court rules 22 NYCRR §§1400.1, 1400.2, and 1400.3. Those court rules dictate that attorneys must provide their clients with a written retainer agreement, a statement of their client’s rights and responsibilities, and written, itemized invoices at least every sixty days.”
Family defenders must remember that, regardless of whether the award of attorneys’ fees is mandatory or discretionary, defenders always have the option of requesting a hearing to challenge either the award of attorneys’ fees or, in the case of proven support violations, the amount of the award. Those with questions on this or any other family court matter should contact Staff Attorney Kim Bode at kbode@nysda.org.
Domestic Violence Survivors Justice Act (DVSJA) News
Departments Divided Over Appealability of Dismissal without Prejudice of an Application for Re-sentencing under CPL 440.47
In People v Nymeen C., 2026 NY Slip Op 00144 (1/14/2026), the Second Department held that a dismissal of an application for a resentencing under CPL 440.47 based on an insufficient submission of corroborating evidence, even if dismissed without prejudice, functions as a denial of a resentencing that permits an appeal of the dismissal. This decision contravenes a Third Department ruling in People v Melisssa OO., 234 AD3d 101 (3d Dept 2024), which held the opposite: that a dismissal without prejudice, which would allow for a resubmission of a new application, does not amount to a denial or an appealable order. The Second Department specifically observed, “Further, the fact that CPL 440.47(2)(d) states that when a court determines at step two that a defendant has failed to provide evidence corroborating the defendant’s claim that he or she was a victim of domestic violence at the time of the offense, the dismissal of the application for resentencing shall be ‘without prejudice,’ does not mean that an order to this effect is not appealable pursuant to CPL 440.47(3)(a). A denial ‘without prejudice’ is still a denial. If this Court were to conclude that a dismissal without prejudice is not appealable, then a defendant would never be able to obtain appellate review of a court’s determination .…” [Citations omitted.]
Statements by Defendant at PL 60.12 Alternative Sentencing Hearing Used to Challenge Plea on Grounds of Voluntariness in Interest of Justice Reversal
In People v Brown-Shook, 2026 Slip Op 00172 (1/15/2026), the Third Department reversed a conviction by guilty plea on direct appeal that included a waiver of appeal, finding that the defendant’s testimony at a DVSJA PL 60.12 alternative sentencing hearing were suggestive of an involuntary plea. The defendant had pleaded to the entire indictment, without a plea agreement with the prosecution but with an understanding that the court would release the defendant pending the sentencing hearing and final disposition. At the hearing, the defendant testified that injuries inflicted upon the accuser had been the result of an altercation initiated by the accuser against the defendant and that she was acting in “self-defense” and that she did not “want to hurt [the victim] in any way.”
In a split decision, while noting that the issue was unpreserved, the majority highlighted “the narrow exception to the preservation rule is implicated whenever a defendant ‘negate[s] an element of the crime to which a plea has been entered or make[s] [a] statement[ ] suggestive of an involuntary plea’ in open court between the plea and sentencing, obliging the trial court to ‘conduct a further inquiry or give the defendant an opportunity to withdraw the plea.’” [Citations omitted.] The majority held: “In view of [the] testimony, County Court was obliged to make further inquiry about that plea or give defendant the opportunity to withdraw it. The court failed to do either. Thus, we reverse the judgment and remit for further proceedings.” [Citations omitted.]
The dissent asserted that the narrow exception to the preservation rule was not triggered in this case, finding instead that “this is not a situation where a defendant raises questions or makes statements to a trial judge that call into question the voluntariness of the plea and the trial judge ignores the questions or comments. To the contrary, defendant’s statements during the DVSJA hearing did not signify a lack of understanding about the nature of the charges to which she pleaded guilty or that her plea was involuntary. We are mindful that defendant’s statements during the hearing suggest that she had a potential justification defense, but the hearing was contemplated by the plea agreement itself, the statements were made for the purpose of establishing defendant’s entitlement to a reduced sentence under Penal Law § 60.12 and defendant twice reaffirmed her plea during the hearing.” [Citations omitted.]
It is worthy of note that the appellant had been sentenced under the DVSJA guidelines in January 2023 to a two-year prison sentence with three years’ post-release supervision and was released in June 2024 to supervision. To the extent possible, we will monitor the case to follow what happens on remand.
Attorneys are reminded that information and resources are available on NYSDA’s DVSJA Resources webpage, and defenders seeking particular assistance or resources 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.
Accountability and Oversight
Standing Against Racism in 2026
After the murder of George Floyd by police in Minnesota sparked what was hoped to be a systemic reckoning, racism persists. In December for example, a Newsday headline read, “Police on Long Island still using force against Black people at disproportionate rates, 5 years after NYS reform plans.” NYSDA’s commitment “to expose and end the overt racism and implicit biases that traumatize and re-traumatize entire communities,” set out in our 2020 statement, has continued.
The recent Martin Luther King, Jr., holiday presented an opportunity to stand against racism. Some public events explicitly noted that racism against Black and brown people continues to undercut the claim that our system provides justice for all, and the need to push back. Others stressed Dr. King’s legacy of service, highlighting his dream of a “Beloved Community.” Still others emphasized connections between the civil rights struggles led by Dr. King (and so many others) and injustices worldwide.
In whatever way defenders observed the holiday, we at NSYDA hope that it provided support for continuing efforts to secure justice for clients and for all. We will continue this year to include information in our trainings and publications about legal issues and systemic problems rooted in racial discrimination and bias. One recent example is last week’s webinar, Raising Race in Search and Seizure Litigation. We thank the NAACP Legal Defense Fund staff for providing this training. We invite defenders and others to suggest topics and actions that will help us fulfill our commitment to anti-racism and our mission to improve the quality and scope of public defense. Email info@nysda.org or call 518-465-3524.
| 
