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Forensics Updates
Second Department Limits Admission of Enhanced Video Evidence
In People v Jones (2026 NY Slip Op 00262), the Appellate Division, the Second Department, considered whether the trial court improperly admitted an enhanced compilation video into evidence and clarified the limits on using edited video at trial.
Mr. Jones was convicted after a nonjury trial of manslaughter in the second degree. On appeal, the defense argued that the trial court should not have admitted an enhanced compilation video or certain police body-worn camera footage. The Second Department agreed that these issues were preserved for review and found that the trial court improvidently exercised its discretion in admitting the enhanced compilation video.
The court explained that while video evidence is generally admissible if it is relevant, even relevant evidence may be excluded where its probative value is substantially outweighed by the potential for unfair prejudice. Here, the video admitted at trial was not a single, continuous recording. Instead, it was a compilation of clips taken from different videos and edited to highlight particular images. These included a photograph emphasizing an object in Mr. Jones’s hand and a photograph of the decedent’s fatal wound with what appeared to be blood highlighted on the decedent's shirt. The court concluded that the probative value of the enhanced compilation video was substantially outweighed by the potential for prejudice.
The court reached a similar conclusion regarding certain police body-worn camera footage depicting the decedent lying in the street while a bystander pleaded with him to open his eyes and a police officer attempted CPR. The court held that admitting this footage was also an improper exercise of discretion.
Despite these errors, the Second Department ultimately affirmed the conviction, finding that the remaining evidence of guilt was overwhelming and that the errors were harmless.
This decision reflects concerns NYSDA has raised in trainings on video evidence, especially around enhanced and compilation videos. Editing or highlighting footage can change how evidence is perceived and increase the risk of unfair prejudice. Defense counsel should closely review how video evidence is presented and continue to challenge altered or non-contiguous footage when its prejudicial effect outweighs its evidentiary value.
Advisory Committee on AI and the Courts Issues Inaugural Annual Report
New York courts are paying more attention to how AI is used in evidence, expert opinions, and filings. The New York Unified Court System’s Advisory Committee on Artificial Intelligence released its first annual report, laying out how courts plan to address the rapidly expanding use of AI by judges, attorneys, and litigants. The report acknowledges that AI is already embedded in legal practice and court operations, and that outright bans are neither realistic nor desirable. Instead, its focus is on guardrails for accuracy, bias mitigation, confidentiality, and human oversight.
The Advisory Committee recommends against requiring attorneys to disclose AI use in court filings, emphasizing that existing certification and ethical duties already require lawyers to verify accuracy and prevent fabricated citations. At the same time, the report takes a firmer stance on AI-generated or AI-enhanced evidence, recommending early disclosure and careful admissibility review. The Committee also highlights serious concerns about bias, black-box risk assessment tools, and the potential for AI to exacerbate inequities if used without transparency or meaningful adversarial testing. Overall, the report frames AI as inevitable but insists that courts, lawyers, and litigants remain responsible for understanding its limits and risks. Several appendices may be particularly useful to practitioners, including a nationwide survey of AI rules governing court filings, a proposed model rule on generative AI use, and detailed guidance on AI-generated and AI-enhanced evidence.
Misconduct Allegations Could Jeopardize Drug Convictions in Niagara County
Two former Niagara County Sheriff’s Office Laboratory analysts have sued the County for alleged retaliation and in their complaint, revealed a potential drug analyst issue. Plaintiff Thomas DiFonzo alleges that the former lab director, Dr. Kori Ortt-Gawrys, who has stepped down in the wake of this scandal, retaliated against him when Ortt-Gawrys asked him to certify a forensic chemist, Lindsay Klubek, for drug analysis when DiFonzo believed that this chemist lacked sufficient training. DiFonzo alleges in the complaint that in 2019 when the director made this request analyst Klubek’s (then known as Lindsay Brignon) training binder had merely three pages of cases whereas plaintiff’s daughter, Lauren Rogers, (the other plaintiff in the suit) had over 500 pages of cases in her training binder. The suit also states that “Ms. K. readily acknowledged that she was not ready for approval as a forensic drug chemist.”
The complaint continues, “46. In August 2019, while Plaintiff DiFonzo was away from the Sheriff’s Forensic Laboratory on vacation, Defendant Ortt-Gawrys instructed Ms. K. to take the proficiency exam, which she reportedly passed, and then, upon information and belief, either she improperly signed off on Ms. K’s three-page controlled substances training binder, or someone forged Plaintiff DiFonzo’s signature on her training binder.
47. Defendant Ortt-Gawrys did not have the authority to sign off on Ms. K.’s binder because Defendant Ortt-Gawrys is certified for DNA and serology, and not drug chemistry.”
Nonetheless, Klubek was approved in that position in 2019 and DiFonzo as the Supervisor of the Controlled Substances Section on Sept. 30, 2021, when DiFonzo alleged he was forced to retire. While the suit anonymized the chemist’s identity, an article in the Investigative Post did not.
At this time, the civil litigation is pending and discovery documents are being shared with the press while the complaint and other documents are publicly available. We reported on lab issues in News Picks from NYSDA staff on April 17, 2023, on April 27, 2023, and on June 23, 2023. The State Commission on Forensic Science conducted meetings and a hearing involving employment issues during executive session, prior to the filing of the state court complaint.
“Transfer” DNA is In, “Touch”/“Trace” DNA is Out.
The lack of standardization in the forensic science world is a big problem. One thing that may be gaining some ground is the standardization of language. Forensic DNA analysts from the private company, Bode, recently wrote in Forensic Magazine, encouraging forensic scientists to use the phrase “transfer DNA” to describe DNA that has been transferred from one person or surface to another person/surface. The authors reasoned, “[r]etiring Touch DNA in favor of a neutral, standardized term that describes DNA detection without implying action would promote scientific accuracy, help provide clearer testimony, and fairer trial outcomes.”
This phrase is more accurate and less biased than “touch” or “trace” or “wearer” DNA. It is imperative to remind ourselves and our factfinders that the DNA technologies used today are so sensitive that analysts reviewing the results may be able to generate partial to full profiles with just a handful of cells. This means that DNA transferred from people or objects that have never touched (secondary and tertiary transfer) can be detected with full profiles reported. With more studies showing how prevalent and persistent DNA is on surfaces, illustrating how easily it can be transferred and profiled, combined with headlines of NYC’s OCME contamination scandal last year, it is more important than ever to be as precise as these technologies are and use language of transfer DNA, arguing that the use of “touch DNA” is far too prejudicial when dealing with technology this sensitive. Language is evocative and evoking transfer instead of direct touching may be impactful to the listener. The defense team in a recent Idaho case recognized this, arguing to exclude references to “touch” or “contact” DNA during testimony, while, unfortunately, the Fourth Judicial District of Idaho disagreed, but “ask[ed] that counsel avoid the use of the terms as much as possible so that any potential confusion can be bypassed.” [Footnote omitted.]
Lawmakers Push Back on Mobile Facial Recognition Tool Used by ICE
U.S. Representative Bennie Thompson recently introduced the Realigning Mobile Phone Biometrics for American Privacy Prevention Act to Congress. According to an article in Biometrica Update, the bill addresses the concerns that Mobile Fortify and other apps are used by ICE as street-level enforcement, outside of ports of entry. As of this writing, the bill was referred to the House Committee on Homeland Security. One concerning issue with the Mobile Fortify smartphone app is that it was deployed while still in beta testing. This is especially concerning in the field of facial recognition technology, which already has high error rates and baked-in bias. If enacted as written, the bill would prohibit use of Mobile Fortify, a prior app called Mobile Identify, “or successor applications, except for identification purposes at points of entry.” The bill prohibits the sharing of these applications with other agencies and outlines timelines for destruction of any captured images, photos, and fingerprints. New York co-sponsors include Representatives Yvette D. Clarke, Grace Meng, and Adriano Espaillat.
Featured Highlights
Raising Race CLE Provided Practical Tools for Search and Seizure Litigation
NYSDA offered a January 22nd webinar by the Legal Defense Fund (LDF) describing legal strategies for recognizing and raising the relevance of race in search and seizure litigation. Backed by data on racial disparity in police stops and killings by police, the presenters furnished defenders with caselaw on, for example, the relevance of race to the “reasonable person” standard used in search and seizure challenges. State courts around the country have begun to include “analyses about how the defendants’ race plays a part in whether their actions were ‘reasonable,’” the training materials noted; New York courts should be urged to do the same.
Race is also relevant to issues surrounding police suspicions proffered to justify stops, trainers noted. Terms like “high crime area,” “furtive gesture,” “flight,” and “nervousness” invoked as justification for police action should be challenged when the race of clients or neighborhoods may factor into police and/or client reactions. Pretext stops were also addressed. Concrete steps were set out for raising race-based challenges including research into officers’ behavior patterns, crime statistics for an area, and police-community relations. The well-received presentation included a look at what information might be presented at hearings or used in cross-examination and what might be included in written pleadings. NYSDA thanks LDF for this training and all they do. The recorded webinar has been added to the On-Demand CLE Training available to NYSDA members. Defenders with questions are encouraged to contact the Backup Center.
As noted in the January 26th News Picks, this webinar is one example of NYSDA’s continuing commitment “to expose and end the overt racism and implicit biases that traumatize and re-traumatize entire communities.” See other race-related information below.
FOIL: Beyond Law Enforcement Records to OCA and More
In recent years, discussion of defenders’ use of the Freedom of Information Law (FOIL) has tended to focus on law enforcement disciplinary records. But many other records subject to FOIL might help a client’s case or defenders’ systemic advocacy. A variety of possible FOIL efforts, and problems, are reflected below.
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A December decision in New York County Supreme Court described efforts—unsuccessful to date—by the Family Justice Law Center (FLJC) to obtain from the Office of Court Administration (OCA), through FOIL, memos or directives from New York City family court judges to attorneys regarding the scheduling of emergency removal hearings. FLJC wants to develop recommendations to end delay in holding such hearings. Family Justice Law Center v NYS Office of Court Administration, 2025 NY Slip Op 25275 (12/2/2025).
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A federal civil suit filed in late January asserts, according to a New York Times article, that New York City police have “pulled over tens of thousands of Black and Latino drivers and searched their vehicles without probable cause, stopping people in those groups at a far higher rate than white drivers around the city….” The “Raising Race” training discussed above suggested FOILing (or subpoenaing) statistical data regarding traffic citations issued in the target county or region to support pretextual stop claims.
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The Court of Appeals, in a case summarized in the most recent issue of the REPORT, ordered further proceedings as to a request for “all documents ‘created by the OCA (including its Counsel's Office)’ between 2011 and the response date, ‘distributed within OCA and/or to judges in the New York State Unified Court System,’ in which federal or state decisions, statutes, regulations, or ordinances are ‘summarized, analyzed, interpreted, construed, explained, clarified, and/or applied,’" ruling that OCA had failed to meet its preliminary burden in claiming an attorney-client relationship with all Unified Court System judges. Matter of New York Civil Liberties Union v NYS Office of Court Administration, 2025 NY Slip Op 05784 (10/21/2025). The FOIL request had followed public disclosure of one OCA memo to judges, noted in the August 10, 2021, edition of News Picks, which interpreted very narrowly the hearing requirement of Matter of Crawford v Ally (197 AD3d 27).
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Law regarding FOIL requests must be carefully parsed. Another Court of Appeals decision on FOIL that was summarized in the last REPORT held that agencies should not “conflate” the requirements that requested records 1) be “reasonably described” and 2) be retrievable “with reasonable effort.” Matter of Wagner v New York City Dept. of Educ., 2025 NY Slip Op 05783 (10/21/2025).
Meanwhile, analysis of information from law enforcement disciplinary records received through FOIL requests continues. Lax penalties for misbehavior by state police troopers were revealed in “thousands of State Police files obtained by The [New York] Times and New York Focus … through records requests of county district attorneys’ offices,” as reported in the Times Union on January 28th. A separate New York Times article discussed FOILing police records that were shared with district attorneys and other aspects of FOIL in “How We Tracked Down Thousands of Police Misconduct Files.”
Delays in production of requested records is a common FOIL problem. Legislative efforts to change that failed last session. The Governor vetoed a bill to tighten deadlines that agencies have to meet, as noted by City and State in a year-end wrap-up of legislation and reported by New York Focus last October 20th.
NYSDA seeks to provide defenders with FOIL information; see for example the May 14, 2025, edition of News Picks and the Law Enforcement FOIL webpage, or contact the Backup Center at info@nysda.org or 518-465-3524. Other resources also exist—as noted by Gothamist on January 4th, one self-help FOIL publication includes as the number one tip: “Be polite.”
Racism Continues, Black History Month Offers Uplifting Information
Racism—overt, subconscious, and systemic—continues to infect the criminal and family legal systems. Some examples appear in this edition of News Picks, including media coverage of data on racial bias in police stops of drivers in New York City in the past few years, including a January 29th Gothamist.com report with a headline beginning, “'Stop-and-frisk on wheels ….'” At the end of 2025, Newsday published an article headlined “Police on Long Island still using force against Black people at disproportionate rates, 5 years after NYS reform plans.” It said, “Black people were nearly 11 times as likely to experience force as white people by Nassau and Suffolk police between 2021 and 2024.” On the family side, the Annual Report of the Citizen Review Panels for Child Protective Services in New York State issued in January 2026 (discussed below) begins, “[f]amilies and children in New York State continue to suffer needlessly from intrusive investigations initiated by reports of child abuse made to the state's hotline, only to have the report be declared unfounded. This act of government intrusion into family life impacts a disproportionate number of Black and Brown families .…”
On a positive note, Black History Month offers an opportunity to highlight the many accomplishments of Black people. As one example, the New York State Department of Veterans' Services held its 2026 Virtual Black History Month event on February 6th, The Weight & The Witness, as noted on their Facebook page. Other information about the service of Black veterans is available online; The War Horse offers a webpage.
The F. H. Williams Judicial Commission will present a program, Frederick Douglass and the Woman Who Led Him to Freedom, at 5:30 pm on February 26th, at the New York County Supreme Court.
The New York Public Library, on January 29th, announced “100 Black Voices: Accessible Versions with BARD & Bookshare Links,” as part of the celebration of The Schomburg Center for Research in Black Culture's Centennial, making materials available to people who find it hard to read standard print. (BARD stands for Braille and Audio Reading Download.)
NAMI, the National Alliance on Mental Illness, shared “a curated collection of resources that explore the intersection of Black history and mental health” in recognition of Black History Month. The introduction says that “[w]hile the experience of being Black in America varies tremendously, there are shared cultural factors that play a role in helping define mental health and supporting well-being, resiliency and healing” but “another part of this shared experience – being subject to racism, discrimination and inequity- can significantly affect a person’s mental health.”
Readers are encouraged to let NYSDA know of other resources.
Immigration News for Defenders
WNY RIAC: Immigration Consequences of Criminal Matters Without Conviction, and More
The February issue of the Western New York Regional Immigration Assistance Center (WNY RIAC) includes an article discussing how “[a]dmitting certain criminal acts might” have “consequences under immigration law, regardless of whether there is a prosecution of or conviction for the offense.” The bottom line for defenders, who are encouraged to read the full article, is, “criminal defense and family court counsel should be certain that no admissions are made on the record to criminal activity that is not the subject of a plea that has been approved by RIAC.” The newsletter also contains updates on Immigration and Customs Enforcement (ICE), including an internal memo saying ICE agents may forcibly enter, without a judicial warrant, the homes of people for whom final orders of removal have been issued. The newsletter’s front page lists services that RIACs provide to public defense lawyers. NYSDA thanks WNY RIAC for sharing this information. Defenders should ask every client whether they were born in the U.S. and for those were not, counsel should contact their local RIAC, listed, among other places, on NYSDA’s RIAC webpage.
Family Court Updates
Reversible Error to Dismiss a Family Court Custody Case When Facts are in Dispute
In Matter of Cruz v Cruz (2026 NY Slip Op 00373 [2nd Dept. 1/28/2026]), the appellate division reversed the dismissal of an FCA article 6 case for lack of subject matter jurisdiction when the family court determined without a hearing that NYS was not the “home state” of the subject children at the time the petition was filed. “The UCCJEA provides, in relevant part, that a New York court has jurisdiction to make an initial child custody determination if ‘this state is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six months before the commencement of the proceeding and the child is absent from this state but a parent or person acting as a parent continues to live in this state.’ The UCCJEA defines ‘home state’ as ‘the state in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child custody proceeding’.” [Citations omitted.] The Second Department concluded that since, according to the record, the parents offered differing accounts of when the children resided in NYS, the lower court was required to hold a fact-finding on the issue before making any determination about jurisdiction.
Family defenders who handle custody cases involving out-of-state issues are encouraged to familiarize themselves with the UCCJEA. The section involving jurisdiction starts at Domestic Relations Law 76. Those with questions can contact NYSDA’s Backup Center staff attorneys who handle family court intake: Kim Bode, kbode@nysda.org, and Hannah Sotnick, hsotnick@nysda.org.
Affirmative Federal Litigation in Support of Families
New York City agencies are increasingly fielding affirmative litigation on behalf of parents impacted by the family regulation system. In January, the Family Justice Law Center, Orrick, Herrington & Sutcliff LLP, and Peter Romer-Friedman Law PPL commenced a federal lawsuit against the New York City Department of Education (DOE) and two school psychologists on behalf of Queens mother Michelle Fraser, who has spent years advocating for appropriate services and school placements for her disabled son. In the Complaint and Jury Demand filed in the Eastern District of New York, Fraser alleges that school officials reported her to the State Central Register of Child Abuse and Maltreatment (SCR) in retaliation for her advocacy, falsely claiming that her son had been out of school for years. Although the resulting investigation was unfounded, Fraser and her family were traumatized by the intrusion into their lives and home. The complaint further alleges that DOE staff routinely report parents of students with disabilities to the SCR in retaliation for their advocacy for special education services for their children, and it seeks training to curb the pattern of retaliation by DOE staff against parents of children with disabilities.
A federal magistrate judge also handed New York City families a victory by recommending class certification in a pending class action lawsuit, Gould v. City of New York, which seeks to end the Administration for Children’s Services’ (ACS) widespread practice of using coercion to illegally enter and search families’ homes during family policing investigations. The judge recommended certifying a class composed of “all parents and legal guardians who have been, are, and/or will be at risk of being subject to ACS investigations in which ACS caseworkers have used, are using, or will use unlawful tactics to search homes without a court order or exigent circumstances,” which would encompass tens of thousands of parents and caregivers. Both lawsuits highlight the intrusiveness and racially disproportionate impact of family policing investigations and the importance of early access to counsel.
Citizens Review Panel Points to Glaring Deficiencies in the “Child Welfare System”
The Citizens Review Panels for CPS in NYS, issued its annual report laying out its assessment of how the family regulatory system is functioning. The panel is made up of community members who were appointed pursuant to the federal CAPTA law requiring each state to have “independent eyes” on the family regulatory system. The report highlights glaring deficiencies in how CPS offices interact with families. “Families and children in New York State continue to suffer needlessly from intrusive investigations initiated by reports of child abuse made to the state's hotline, only to have the report be declared unfounded. This act of government intrusion into family life impacts a disproportionate number of Black and Brown families, resulting in increased stress and anxiety for communities already dealing with adverse impacts from poverty, housing and food insecurity, lack of access to health care, and higher likelihood of neighborhood violence.”
Key findings include that:
1. Families remain over-surveilled and under-supported.
2. Disparities by race, income, and county are widening,
3. High caseloads and staff turnover at CPS offices mean that case workers cannot build relationships with families that lead to real change.
4. “Quality improvement structures exist but lack enforcement power. New York has a functioning Continuous Quality Improvement system, which the federal review recognized as a strength. However, identifying problems is not the same as solving them.” Without mechanisms to hold counties accountable for poor performance or to ensure that best practices spread statewide, data collection becomes an exercise in documentation rather than a driver of change.”
5. Community-based prevention programs, such as Healthy Families NY and early legal representation, continue to provide better outcomes for families than traditional child protective interventions.
Accountability and Oversight
NYC Bar Associations’ Task Force Finds Assigned Counsel Plan Wanting
An interim report’s conclusion that the “New York City Assigned Counsel Program administration is in a state of crisis” and fails to meet applicable standards will surprise no one familiar with the Program’s situation and history. Criticisms include that the Program “lacks independence, proper governance, and sufficient staffing to provide panel attorneys with the requisite level of support, training, mentorship, and access to experts and specialized professionals ….” Failure by the City to access over $50 million in state funding is a key criticism. (The report does also note aspects of the Program said to work well.) The report is entitled “Interim Report on the Status of New York City’s Assigned Counsel Plan,” and the root of the described problems is the “plan” under which the Program is structured.
The interim report says that the Program “must be restructured outside of the MOCJ [Mayor’s Office of Criminal Justice] under an independent governing board consistent with ILS [New York State Office of Indigent Legal Services] and ABA [American Bar Association] principles.” NYSDA long ago noted problems with a structure that places assigned counsel administration in the city executive office. In comments on proposed rules in 2008, we said, “administering an assigned counsel plan within the New York City Mayor’s Office is not an option provided to local government under state law. County Law § 722(3) requires such plans to be furnished by a bar association as the City’s original plan calls for.”
The new interim report was prepared by a Task Force formed by the following: New York City Bar Association, New York County Lawyers Association, Bronx County Bar Association, Queens County Bar Association, Brooklyn Bar Association, New York Criminal Bar Association, Kings County Criminal Bar Association, and Richmond County Bar Association. A second planned report will make a recommendation for an ACP plan to implement the necessary reforms.
The interim report was discussed in the New York Law Journal on January 21st.
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