Legislative Session Ends After Brief Return by the Assembly

During the brief legislative session after the late budget, the Legislature did pass a few pieces of legislation of interest to defenders, which now await action by the Governor. Some of those bills are discussed below and we will be providing more information in upcoming editions of News Picks. And, after the scheduled end of the legilative session, the Assembly returned earlier this week to pass several pieces of legislation, including the Challenging Wrongful Convictions Act (S.7548/A.2878-A) and the Preserving Family Bonds Act (S6720/A5394).

Clean Slate Passed, With Amendments

Language of the Clean Slate Act, A.1029C/S.7551-A, the bill to automatically seal certain criminal records, was "tweaked" in the last week of the session, as reported by the New York Law Journal on June 6th. It was then amended again. As reported by the New York Times, the bill has had the support of "a broad coalition of business and labor groups, who say it will both reduce recidivism and boost the economy." NYSDA and many public defense and justice advocacy groups have long supported Clean Slate. The bill as passed Friday night, June 9th, contained several exceptions; convictions that will not be sealed under it include most class A felonies and most sex crimes. An item in the Gothamist described the bill and noted that Governor Hochul is "expected" to sign it. Earlier in the week, City and State had similarly noted a three-way agreement among State leaders. Only shortly before, Hochul had still been reviewing the bill, according to a piece in New York State of Politics.

Restoring Appellate Review: S939/A152

S939/A152 is a bill that amends CPL.710.70 to enable appellate review of suppression rulings regardless of appeal waivers. If signed by the Governor, this legislation would restore the legislative intent behind CPL 710.70, allowing for substantive review of police and official misconduct during searches and seizures.

Increase in Number of Judges Passed by Legislature

"A bill meant to decrease case backlogs in New York courts by adding 20 judges across family, criminal and civil courts in New York City and upstate is en route to Gov. Kathy Hochul’s desk." So begins a June 9th article in the New York Law Journal. It describes bill S.7534/A.7669. It increases the number of judges in the 2nd, 9th, and 11th judicial districts by one each; the number of family court judges in New York City by three and by one in each of these counties: Albany, Chemung, Erie, Monroe, Niagara, Oneida, Onondaga, St. Lawrence, Suffolk and Westchester; and by two the number of judges in New York City criminal court and in New York City civil court.

Other Bills Supported by NYSDA Did Not Pass

A number of criminal legal system and family court bills that NYSDA supports did not make it to a vote this session. We expect they will be back before the Legislature next year, including these two important family court bills:

• S.901/A.1980, the Family Court Miranda Bill, would require child protective services (CPS) to disclose certain rights to parents and caretakers under investigation, specifically that "absent a true emergency, CPS cannot enter a home and interview children without either a court order or a parent's permission." An article by Zach Williams about the bill appeared in the New York Post on June 12th. 

• S.902/A.2479, which would eliminate anonymous reporting of suspected child abuse or maltreatment to the Statewide Central Registry.

NYSDA will continue to report on legislative updates. We will also cover these changes at our Annual Conference in Saratoga Springs, which runs from July 30th to August 1st.

Discovery Case Law Spotlight: People v Torres, 2023 NY Slip Op 50532(U) (Crim Ct, Queens Co 6/1/2023)

In Torres, the court considered whether the prosecution had invalidly stated ready for trial on an improper certificate of compliance.

When the prosecution filed their certificate of compliance, they failed to disclose body-worn camera audit logs associated with the case and accessible to them on Evidence.com. When the defense alerted the prosecution that the audit logs were missing, the prosecution responded that they did “not have a username or password" for Evidence.com and could not access the logs. After re-asserting this claim multiple times, the prosecution eventually conceded that "while line-level ADAs do not have the ability to log in to Evidence.com, [the] office does, in fact, have access to th[e] information."

The court held that the body-worn camera audit logs were within the prosecution’s control and ought to have been disclosed as part of automatic discovery. The prosecution’s certificate of compliance was invalid: they “did not properly certify, in good faith, that they exercised due diligence to ascertain the existence of discoverable material and that they had disclosed all known material.”

“Regardless of what they may contain in any given case, the NYPD's body-worn camera audit logs themselves necessarily fall under CPL 245.20(1). The People knew about these logs, did not disclose them, and then falsely 'certified' that they had disclosed all known material.” Because the prosecution’s statement of readiness was not preceded by a proper, good faith certificate of compliance, it was illusory and the defense’s motion to dismiss pursuant to CPL 30.30 was granted.

In its ruling, the court chided the prosecution for attempting to shift the burden of identifying and requesting discoverable materials to the defense: “Automatic discovery is not a game whereby defense attorneys are tasked with guessing what the People or police have sitting on their computer accounts. Under the law, it is the People who are tasked with exercising due diligence to ascertain the existence of discoverable information in the first instance. (C.P.L. § 245.50[1]). ‘[T]he discovery statute now imposes upon the People an affirmative obligation to ferret out and ascertain’ discoverable material. (People v. Castellanos, 72 Misc 3d 371, 376-77 [Sup. Ct., Bronx County 2021]). The People may not ‘shift the burden to the defendant’ to ‘remind[]’ them of ‘their automatic discovery obligations.’ (People v. Rivera, 78 Misc 3d 1219[A], at *4 [Sup. Ct., Queens County 2023]). Indeed, ‘discovery demands are now defunct.’ (Ferro, 197 AD3d at 787-88; see also People v. Pagan, 75 Misc 3d 11, 12-13 [App. Term, 2d Dep't 2022] [noting the same]). ‘The current statutory framework of CPL 245.10 abolishes the prior mechanism for obtaining discovery through serving a demand upon the People and instead requires that the People provide the discovery listed in CPL 245.20 automatically within the deadlines established therein.’ (Ferro, 197 AD3d at 787-88).”

For more information about the discovery reforms and case law interpreting CPL article 245, please visit the Discovery page on NYSDA’s website, now updated with Caselaw Highlights. Defenders with questions about discovery issues are encouraged to contact the Public Defense Backup Center’s Discovery and Forensic Support Unit at info@nysda.org, 518-465-3524, or using our contact form. 

CAL IDT Issue on 5th Amendment Implications of SORA and Beyond

The June 2023 issue of the Center for Appellate Litigation (CAL) publication Issues to Develop at Trial (IDT) discusses the implications of People v Knull (208 AD3d 163 [1st Dept 2022]), "which held that it violates a potential SORA registrant’s Fifth Amendment rights to assess points for 'failure to accept responsibility' when their direct appeal has not yet been perfected or decided." This is a follow-up to a brief Practice Update in an earlier IDT issue. The current publication proposes lodging a Fifth Amendment objection, where a client's direct appeal has not been exhausted, not only in the SORA context but also as to increased sentences based on "lack of remorse" for continued assertions of innocence following trial. As always, NYSDA thanks CAL for sharing IDT and other resources with the public defense community.

Krull was summarized in the Case Digest section of the November-December issue of the Backup Center REPORT.

Court of Appeals Issues Several Sex Offense Decisions

On June 15, the Court of Appeals issued several decisions relating to the Sex Offender Registration Act (SORA) and the Sexual Assault Reform Act (SARA).

People v Anthony, 2023 NY Slip Op 03303 – Where the SORA court stated an incorrect standard of proof regarding the defendant's request for a downward departure from the designation assessed on the risk assessment instrument (RAI), but the Appellate Division credited the proffered mitigating factors while finding a downward departure unwarranted, the claim that the defendant was entitled to a downward departure as a matter of law is rejected. Judge Rivera, with Chief Judge Wilson, dissented.

People ex rel. E.S. v Superintendent, Livingston Corr. Facility, 2023 NY Slip Op 03298 – Residency restrictions under SARA apply to youthful offenders (YOs) on parole or post release supervision for qualifying offenses, although such restrictions do not apply to YOs on probation, and YOs are not required to register under SORA. Holding YOs in prison past their parole eligibility date for lack of SARA-compliant housing, while severe, is not error.

People ex rel. Rivera v Superintendent, Woodbourne Corr. Facility, 2023 NY Slip Op 03299 – The petitioner, whose offenses predated the applicable amendments to SARA, failed to meet his burden of showing that applying the SARA school grounds condition violated the Ex Post Facto Clause. Judge Rivera and Chief Judge Wilson, and Judge Halligan, dissented in two separate opinions.

People v Weber, 2023 NY Slip Op 03301 – The Appellate Division had the authority to remit the matter to County Court for consideration of an upward departure from a risk designation of level two where the prosecution had opposed the defendant's request for a downward departure from the initial RAI assessment rendering a presumptive level three. Chief Judge Wilson dissented; Judge Troutman did not take part.

People v Worley, 2023 NY Slip Op 03300 – Where the prosecution acknowledged errors in the RAI designation of level 3, but then sought an upward departure from the revised level 2 designation, a new hearing is required. The lack of a 10-day notice of intent to seek an upward departure violated the defendant's rights to notice and an adequate opportunity to be heard. Judge Garcia concurred based "on this unique record …."

Prosecution U Visa Assistance to Accuser, Found via FOIL, Was Brady Material

In People v Flores (2023 NY Slip Op 02768 [5/23/2023]), the First Department held for the defense. At issue was whether the prosecution "violated Brady v Maryland … by failing to disclose to the defense in discovery evidence that the Bronx District Attorney's Office …, through its Crime Victims Assistance Unit (the CVAU), was helping the complainant (L.R.) obtain an immigration benefit known as a U visa." The testimony of L.R. was central to the case and the defense attacked his credibility while "[t]he prosecution attempted to vitiate possible lines of impeachment" and argued in summation that L.R. had received no benefit and had no motive to lie. After their conviction, the defendants used the Freedom of Information Law (FOIL) to ultimately uncover records showing that L.R. met with the CVAU soon after reporting the charged offense, though a U visa isn't mentioned in the records untill nine months later, and the prosecution provided L.R. with assistance in seeking a U visa. Such visa allows a citizen of another country who aided in the investigation or prosecution of criminal activity and who remains in this country for three years under the visa, to apply for lawful permanent residence. As "the suppressed U visa evidence would have raised enough reasonable doubt to affect the outcome of the trial," the defendants' CPL 440.10 motion should have been granted.

Seek the Help of Your RIAC When Cases May Involve Immigration Issues

NYSDA frequently reminds defense attorneys to contact the appropriate Regional Immigration Assistance Center (RIAC) whenever a client is determined not to have been born in the U.S. The Flores case above demonstrates that information about immigration law may also be relevant if others involved in the case are not U.S. citizens. To find the RIAC for your area, check NYSDA's webpage on Immigration Resources for Criminal and Family Defense.

NOTE: the RIAC for Region 2 has moved. It is now housed at the Onondaga County Bar Association Assigned Counsel Program, email RIAC2@ocbaacp.org, phone 315-356-5794. The brochure for Region 2 RIAC can be viewed here.

WNY RIAC June Newsletter Available

The June 2023 issue of the Western New York RIAC newsletter contains a summary of Matter of Pougatchev, 28 I&N Dec 719 (BIA 2023), which held that "[a] conviction for burglary of a building under section 140.25(1)(d) of the New York Penal Law is not categorically an aggravated felony burglary offense under section 101(a)(43)(G) of the Immigration and Nationality Act …." The case also held that a "conviction for displaying what appears to be a pistol, revolver, rifle, shotgun, machine gun, or other firearm while committing burglary under section 140.25 (1)(d) of the New York Penal Law … constitutes an aggravated felony crime of violence under section …."

The newsletter includes a recap of a two-part workshop entitled "Be informed: What is ICE: How do They Operate?" that was presented earlier this year by the Immigrant Defense Project and the Surveillance Resistance Lab. Also noted is WNY RIAC'S participation in orientation presentations to newly arrived refugees. These presentations cover legal systems, rights and responsibilities, and consequences for breaking certain laws.

NIJ-Funded Research Results on Persistence of Trace DNA on Various Substances Under Different Conditions

The NIJ conducted studies to determine how long DNA persists on different materials given different environmental conditions and it recently issued a summary of the results.

First a disclaimer: the NIJ, like the prosecution/State, utilizes a widespread term that is often incorrect when discussing DNA. The word “touch” to describe DNA conjures an image that the DNA found on the tested object got there by someone touching that object. We must move away from this language and reclaim the narrative for our clients; no forensic DNA expert can accurately testify to the activity that caused the DNA to be on the evidence. You might have read or heard about “touch” DNA so much by now that it’s part of your vernacular and it seems harmless, but your future jury won’t think so when they hear “touch DNA” in your next case where an alternate and innocuous explanation exists for the presence of the DNA on that piece of evidence. Let’s stick to the word it should be called and let’s work on getting this less biasing word back into the lexicon: “trace” DNA.

Back to the study. The researchers concluded that dry, hot environmental conditions degrade DNA, with UV light having the most serious degradation effects. Notably, “[f]or all samples exposed to UV light, the researchers could not determine the DNA profiles.” The DNA on the samples exposed to UV light were too degraded to be useful in genetic analysis. Limitations of the study included an experimental design that ensured there was a sufficient amount DNA on the surface to begin with before the samples were subject to potentially degrading conditions and screening for individuals who were “high shedders.” More studies are needed to determine specific rates of degradation of DNA evidence and “[t]he extent to which the properties of [trace] DNA differ between individuals is also unknown.” The full study can be found here.

Niagara County Sheriff’s Laboratory Permitted to Continue Operating After Recommendations from the State Commission on Forensic Science

NYSDA previously reported on this issue (see April 27, 2023 issue of News Picks). Following a hearing and additional assessment by the State Commission on Forensic Science, the Niagara County Sheriff’s Laboratory has been issued several binding recommendations. As reported in The Niagara Gazette, the Commission highlighted some areas of concern:

• “A lack of open communication between the lab and the commission
• Failure, at times, to execute proper International Organization for Standardization, or ISO, criteria
• Record keeping that was, at times, inconsistent with best practices
• The need for the forensic laboratory to operate independently, particularly in the instance where a lab administration is also a customer of the lab.”

The County Attorney reported that there were no formal sanctions, and no test was conducted improperly. Without knowing more and understanding that the proceedings were largely conducted in confidential executive sessions, a healthy dose of skepticism is warranted. The lab will continue to operate under the binding guidance it was issued. If you have any questions about meetings of the Commission on Forensic Science and its DNA Subcommittee, you may contact Staff Attorney Ashley Hart at ahart@nysda.org or (518) 898-8075. 

Mandated Peer Support in Jails Often Thwarted

A 2021 state law was intended to improve recovery services for incarcerated people with substance use disorder provided for medication assisted treatment and other services including "peer support." Mental Hygiene Law 19.18-c(2)(d). However, as reported by NYSfocus.com on June 1st, no guidelines for peer services have been established by the Office of Addiction Services and Supports (OASAS), so that "county jails are mostly calling their own shots on how to comply with the law." As a result, peer advocates' access to clients in many county jails is extremely limited. A bill to deem jail-based treatment and peer-led recovery support services "essential medical care services" has passed the State Senate but not the Assembly. But even if passed, that bill would not guarantee peer access, as county prohibitions on hiring people with criminal records would remain a significant barrier.

DOCCS Establishes, Then Rescinds, Rules Hampering Incarcerated Writers

A May 11th directive of the Department of Corrections and Community Supervision (DOCCS) established a draconian approval process for publication of creative work by people in DOCCS custody. When New York Focus exposed the policy, it was rescinded, as reported in a NYSfocus.com article on June 7th.

The New York Times profiled New York Focus on June 9th. The coverage of the DOCCS directive and many other prison issues was noted.

Poughkeepsie Starts LEAD Program

Poughkeepsie’s Police Department has started a Law Enforcement Assisted Diversion (LEAD) program, offering mandated services in lieu of an arrest or desk appearance ticket for certain non-violent offenses. According to the department, 21 referrals have been made since the start of the program in February, with 10 people deciding to enter into the program. Currently, referrals can only come from law-enforcement officers.

"This is very intense, and they do not want large caseloads, they want quality involvement, not quantity in large numbers. They want to see lives changed," according to Duchess County Public Defender Thomas Angell, whose office collaborated in the creation of the program.

Office of Court Administration Supports Bill to Require Justice Court Justices Be Attorneys

One of the bills to watch for the 2023-2024 Legislative Session is S139B/A1358, which would require justices in the 100 highest volume town and village courts to be attorneys and be admitted to practice for at least five years. After previously saying they did not take a “substantive position” on the bill, this week OCA spokesperson Lucian Chalfen said the office “substantively supports” it. “A number of Town and Village Justice Courts handle a variety of criminal and civil cases and controversies which have dramatic real-world consequences for the parties, including the setting of bail and the imposition of jail time,” Chalfen said. The bill has passed in the Senate, but not the Assembly.

Oneida Opens Teen Gun Court

According to the Division of Criminal Justice Services, Oneida County has opened a Teen Accountability Court for 14–17-year-olds convicted of or adjudicated with gun crimes. Working with the Youth Part and Family Court, the new court aims “to hold juvenile justice involved youth accountable for their behaviors without immediate detention or placement… [by utilizing] GPS monitoring, frequent field contacts, weekly judicial reviews, and Cognitive Behavioral Intervention.”

Association News

NYSDA Welcomes Nancy Farrell to the Veterans Defense Program

NYSDA is pleased to welcome Nancy Farrell as a Staff attorney in our Veterans Defense Program (VDP). Prior to becoming a part of the VDP team, she practiced criminal and parental defense in Ontario County as an Assistant Public Defender and she served as the Public Defender in Schuyler County. Nancy’s familiarity with veterans developed during her time as the primary defense attorney in the Ontario County Veterans Treatment Court. She started her family court practice at the Hiscock Legal Aid Society in Syracuse, NY. She is the recipient of the 2017 NYSBA Denison Ray Defender Award and the 2018 Ella B. Family Justice Award, for her role in ensuring parents were represented at removal hearings in Syracuse, NY. Attorneys who are representing veterans in criminal or family court are encouraged to contact the VDP for assistance: vdpinfo@nysda.org or 585-219-4862.

NYSDA’s New Website: Members Can View Videos of Prior Trainings

With the launch of our new website NYSDA members can view many of our prior high-quality trainings at no cost. Videos of programs offered from 2020 to 2022 are currently available and 2023 programs will be added soon. Members need to log in for access to the training videos and program materials. If you need assistance with logging in, please contact Heather Rapp, Program Assistant, at 518-465-3524 x13 or hrapp@nysda.org. Note: At this time, NYSDA does not offer CLE credit for viewing pre-recorded trainings on our website.

You can join NYSDA or renew your membership here or reach out to Heather Rapp who can assist you with membership.

Upcoming Training Programs

Sunday, July 30 – Tuesday August 1, 2023: 56th Annual Meeting and Conference. Program details and registration information are available here. The event will be held at the Saratoga Hilton in downtown Saratoga Springs, with an online option for the training sessions and membership meeting. In-person attendees are encouraged to join us for a welcome reception on Sunday evening and to network with colleagues from around the state throughout the conference. The registration deadline is Tuesday, July 11.

The hotel room block at the Saratoga Hilton is sold out. There is a second room block at the Hilton Garden Inn Saratoga Springs (125 South Broadway, Saratoga Springs). The special room rate of $201 is available through June 26th or when rooms have been fully booked. To reserve a room at the Hilton Garden Inn Saratoga Springs, go to https://www.hilton.com/en/attend-my-event/nys-defenders-weblink/.

Save the Date: Thursday, September 28, 2023, 12:30 – 2:30 pm: Representing Disabled Parents: Strategies and Solutions for Preserving Their Rights with Robyn M. Powell, PhD, JD, Associate Professor, University of Oklahoma College of Law. Details and registration information coming soon.

Save the Date: Thursday, October 12, 2023, 1-2:30 pm: Litigating Crawford, with Eli Northrup, Policy Counsel and Criminal Defense Practice of the Bronx Defenders with members of the Family Defense Team. Details and registration information coming soon.