State Budget Negotiations Continue

The State Budget is almost two weeks late. The Executive and Legislature continue to negotiate various fiscal and policy issues, including some that are critical to public defense, such as desperately needed family defense funding, the harmful proposal to sweep $234 million from the Indigent Legal Services Fund, expanded loan forgiveness, and COLA increases for other public defense state funding. In the meantime, the Legislature has passed two budget extenders and they are expected to pass another extender later today, as reported by Spectrum News. We will continue to keep readers updated on the budget process and what ends up in the final budget.

Split Court of Appeals Addresses 30.30 Post-readiness Delay

The Court of Appeals upheld an Appellate Term decision granting dismissal under CPL 30.30 to a person charged with a Class A misdemeanor who had not been tried 420 days after his indictment. The prosecution in People v Labate (2024 NY Slip Op 01582 [3/21/2024]) had given no reason for post-readiness delays requested beginning on the first trial date. The trial court had denied dismissal because the adjournments, totaling 43 days, had been for longer periods than what the prosecution requested. The high court majority said the presumption that time beyond what is requested not be charged to the prosecution could not be applied here. Precedent requires that, once the prosecution has declared readiness, they “must provide an explanation for their post-readiness requests for adjournments either some time before or in response to a defendant’s CPL 30.30 motion.” Where no reason was offered, the prosecution is charged with all delay, not just what was requested.

The majority addressed the dissent, saying that the dissenters took umbrage with CPL 30.30 as a whole and that the Legislature surely knew the potential impact of the limits it set. The conviction here predated the 2019 amendment of 30.30 that provides explicitly for evaluation of post-readiness requests for delay after inquiry into the reasons for it; delay “‘shall only be approved upon a showing of sufficient supporting facts.’” Therefore, the instant decision will not be the basis for the dissent’s concerns materializing, if they do, the majority said.

The long dissent by Judge Troutman, joined by Judges Garcia and Singas, accused the majority of overturning “decades of precedent by creating an ill-advised new rule that will force courts to dismiss cases on speedy trial grounds through no fault of the prosecutor.” Complaining that the reason for court delay following a prosecution request for a shorter adjournment is irrelevant, the dissent downplayed the possibility that the prosecution, knowing that a new trial date cannot as a matter of practicality be set in a short period of time, will deliberately buy itself a much longer time without facing 30.30 consequences. Trial courts can deny adjournments “where gamesmanship is suspected,” the dissent said—without explaining how that denial could happen if the prosecution isn’t required to state any reason for its request of a “short” delay.

Extreme Risk Protection Orders Deemed Constitutional by Second Department, While Dutchess Supreme Court Finds Right to Counsel at Hearings

In a case out of Middletown, the Second Department held that article 63-A of the Civil Practice Law & Rules -- Extreme Risk Protection Orders -- does not violate the Second Amendment. In Matter of R. M. v. C. M. (2024 NY Slip Op 01545 [3/20/2024), the court determined that 63-A’s restriction on firearm possession based on serious harm to oneself or others is consistent with a historical tradition of regulation for “dangerous individuals” as necessitated by Bruen. The court also determined that 63-A’s procedural safeguards adequately protect respondent’s rights under the Fourth Amendment. Because the respondent retained counsel, the Court determined that “whether an indigent respondent has a constitutional right to assigned counsel is not in issue in this case.” 

Regarding the right to counsel, in McMorris v Michael W., a Dutchess County Supreme Court judge deemed “that there is a federal and state constitutional right to counsel at an ERPO hearing when there are pending related criminal proceedings, and that an indigent person is entitled to the appointment of assigned counsel under those circumstances as a matter of due process and fundamental fairness.” However, in line with the Office of Indigent Legal Services’ advisory letter on the matter, the court did not find that the right to counsel where there is only the potential for criminal liability or investigation; instead, “the right is limited to an ERPO hearing where an accusatory instrument or arrest warrant has been filed in a related criminal proceeding.”

For more on R.M. v. C.M., see further coverage from LoHud.

Panel Splits Over Determining if Racial Bias Infected a Jury

“In a split decision, a state appeals court has affirmed a murder conviction and other charges, despite indications that half the jury expressed racial bias,” begins a March 27th Daily Record article. In People v Wiggins (2024 NY Slip Op 01659 [4th Dept 3/22/2024]), a juror made allegations during the murder trial of a Black man that another juror had commented “‘all black people look the same in the dark’” during a discussion about whether to review video evidence. Responding to defense counsel’s questions, the complaining juror said that approximately six jurors had expressed this type of bigotry, but added that they had changed their minds and apologized the next day for things said. She “could not ‘guarantee’ that any racial animus had been extinguished,” the juror said, but “expressed confidence that the jury was ‘aware of it, and are looking more deeper into the trial.’” Only the juror alleged to have made the comment about all looking the same was questioned about the allegations; he denied the phrasing. The majority in Wiggins concluded that the trial court had “appropriately ensured that defendant’s right to an impartial verdict [was] properly balanced with the jury’s right to adjudicate free from outside interference” [internal quotation marks omitted]. The majority also noted that both parties had rejected a juror-by-juror inquiry (a process the majority deemed “intrusive”) and said “the court was effectively tasked with determining whether the answers elicited provided evidence of racial bias potentially affecting jury deliberations or instead supported the conclusion that, following an initial rushed deliberation session, there was a frank discussion among the jurors about racial bias (and the appearance thereof) that prompted a closer look at the evidence.”

The dissenters noted that the complaining juror’s disclosure had included information about an allegedly racist joke and some jurors making “‘statements as though blacks are different than — we live a whole different culture, whole different life, all of us, than white people ... That’s an insult to categorize everybody into this gang crime-related thing.’” The dissenters were “unable to conclude on the record before us that the jury was not tainted by racial bias in their deliberations” and would find denial of a mistrial to be an abuse of discretion. They continued, “the disclosure of alleged racial bias harbored by approximately half of the members of the jury warranted, at the very least, a question posed to each of the members of the panel of whether they could perform their duties as jurors without bias or prejudice.”

Neither the majority nor the dissenting opinion mention the Unified Court System’s video for jurors, described by Chief Judge Wilson as an effort to help jurors "understand the dangers of implicit bias and what you can do to remove implicit biases, stereotypes, and prejudices from your deliberations and decision making as a juror.” The video and transcript are available on the UCS website. Nor do the opinions reference the model Final Jury Instructions reminder about fairness. NYSDA urges defenders to be alert for, and make a record of, instances of apparent juror bias.

Termination of Parental Rights Reversed Based on New Facts

In Matter of Noah C. (2024 NY Slip Op 01430 [3/15/2024]), the Fourth Department vacated a termination of parental rights (TPR) disposition and remitted to the Ontario County Family Court for a finding on whether a TPR was still in the best interests of three of the children, in light of new facts and allegations from those children and the respondent father. The decision, quoting from the Court of Appeals case, Matter of Michael B. (80 NY2d 299, 318 [1992]) states: “We may consider ... new facts and allegations ‘to the extent [that] they indicate that the record before us is no longer sufficient’ to determine whether termination of ... parental rights is in [a child’s] best interests.” The court in Noah C. noted that when the lower court terminated the respondents’ parental rights, the requisite “best interests determination was based, in part, on the fact that the oldest child had been successfully placed with a kinship guardian, and that the second oldest child, the third oldest child, and the youngest child had long lived with foster parents who were willing to adopt them.” The court continued, in the intervening 20 months, custody and the living situation of three of the four children has destabilized, calling into question whether a TPR continues to be in their best interests.

Court System Launches Online Court Activity Dashboard

The New York State Unified Court System launched an interactive dashboard to access “caseload trends data for state-paid trial courts.” The dashboard includes filings, dispositions, and pending case data for supreme and county criminal, supreme and county civil, family and surrogate courts since 2019.

Chief Administrative Judge Zayas explained the launch as spurred by “‘the steadily increasing interest in caseload trends data’” so that “‘researchers, legislators, court users, and others [can have] easy access to this valuable information.’”

Millions of Dollars Invested for Law Enforcement to Surveil New Yorkers

A New York Focus article published this week, entitled As State Police Expand Surveillance, Privacy Advocates Turn to US Congress, discusses the State Police’s recent contracts with technology companies to increase their capacity and the number of tools it has to conduct widespread surveillance of every day New Yorkers. “‘These products are deeply invasive, discriminatory, and ripe for abuse,’” said Albert Fox Cahn, executive director of the Surveillance Technology Oversight Project, which signed the letters sent to Senate Majority Leader Chuck Schumer and House Minority Leader Hakeem Jeffries. The technology reaches “‘into nearly every aspect of our digital and physical lives.’” 

The article discusses how members of Congress are looking to address Section 702 of the Foreign Intelligence Surveillance Act (FISA), which is set to expire on April 19th. The author explains how it is “notorious for a provision that allows the feds to access Americans’ communications swept up in intelligence agencies’ international spying.” Furthermore, some members of Congress are “pushing to ban a so-called data broker loophole that allows law enforcement to buy civilians’ personal data from private vendors without a warrant. Closing that loophole would likely make much of the New York State Police’s recently purchased surveillance tech illegal.” NYSDA’s Discovery and Forensic Support Unit will be monitoring these developments.

Western NY RIAC April Newsletter Available

The Western New York Regional Immigration Assistance Center (WNYRIAC) has shared its April newsletter with NYSDA and the public defense community (and we thank them!). The primary article, based on notes from the Immigrant Defense Project’s tour of the Customs and Border Protection (CBP) operations at JFK Airport, contains both descriptions of what happens and information/reminders about legal ramifications of those operations. For instance, permanent U.S. residents who will be seeking to re-enter the country after traveling should be advised that if they once had a criminal conviction that could lead to removal, but that conviction was vacated or overturned on appeal, they should carry proof that the conviction is no longer valid to show CBP officials. And as always, defenders in both criminal and family matters are reminded to contact the RIAC in their area whenever a standard inquiry about a client’s place of birth reveals they may not be a U.S. citizen.

Advocacy Group Offers Guidance on Drug Testing of Pregnant and Birthing Individuals

The legal advocacy group If/When/How: Lawyering for Reproductive Justice issued the first-of-its-kind guide to educate individuals and their advocates on state requirements for drug testing of pregnant and birthing individuals and their newborn babies. The report states, “This resource does not provide legal or medical advice but is intended to help you differentiate what is legally required from what is merely state agency guidance. Importantly, only two states require drug testing of pregnant and birthing patients in certain circumstances, and only four states mandate drug testing of newborns in certain circumstances.” Importantly, New York State does not require such testing. There is currently an “informed consent” bill before the NYS legislature that would offer more protection to individuals, to address the instances of individuals and their babies being testing without consent, a majority of whom are Black and brown.

Daniel’s Law Task Force Listening Session 4/16

The Daniel’s Law Task Force will host a virtual listening session on April 16th from 3 p.m. to 5 p.m. to gather additional feedback from the public, it was announced on April 2nd. Registration is required for those who wish to comment. The Task Force “is charged with developing recommendations to guide behavioral health crisis response and explore avenues for related diversion services.” It was established in 2023 to address issues brought to public attention with the 2020 death of 41-year-old Daniel Prude, who was mentally ill, at the hands of police. Time permitting, the session may include a presentation about the ACCORD (Albany County Crisis Officials Responding and Diverting) program. People wishing to observe the meeting without commenting can watch the webcast.

Also referencing the death of Daniel Prude is a NYFocus report on March 19th about a new bill “that would effectively ban public agencies from referencing a largely debunked medical syndrome long used to justify deaths in police custody.” The so-called “excited delirium syndrome” was cited in an autopsy report as a contributing factor in Prude’s death, which occurred after police put a hood over his face and pinned him to the pavement for two minutes.



Association News

Upcoming Webinar Trainings

Thursday, April 18, 2024, 12:30 – 2:00 pm: Family Defender Article 10 Lunchtime Series: Effective Discovery and Motion Practice in Article 10 Cases, with Philip Katz, Partner, Fink & Katz, PLLC, and Lawrence Moore, Family Court Bureau Chief, Dutchess County Public Defender’s Office. Register for this web training here.

Upcoming In-Person Training Programs

Thursday, April 25 – Friday, April 26, 2024: Advanced Roadside Impaired Driving Enforcement (ARIDE) Instruction Course with Jonathan D. Cohn, Partner, Gerstenzang, Sills, Cohn & Gerstenzang, and John R. Sandle, Owner & Chief Investigator, Sand Investigations. This two-day (16.5 credit hour) program will be held in Albany. Please note: prior participation in a comparable basic NHTSA Standardized Field Sobriety Test (SFST) program is a prerequisite to participation in this program. Details and registration information for this training are available here. Please note that this program, which follows the ARIDE curriculum, does not offer certification by NHTSA or any law enforcement agency.

Sunday, June 9 – Friday, June 14, 2024: NYSDA Defender Institute Basic Trial Skills Program. Our annual Basic Trial Skills Program will be held at Skidmore College in Saratoga Springs. Anyone interested in applying should contact their defender program chief or NYSDA directly at training@nysda.org.

Save the Date:

Sunday, July 21 to Tuesday, July 23, 2024: NYSDA’s 57th Annual Meeting and Conference will be held at the Saratoga Hilton and City Center. The Chief Defender Convening will be held on Sunday, July 21st. On Monday, we will have our Annual Meeting of the Membership in the morning before the training starts and the Awards Banquet will be Monday evening. Training sessions will be held during the day on Monday and Tuesday. Similar to last year, we will be offering both criminal and family defense tracks. Details and registration information will be available later in the Spring.

Hotel Reservations: Rooms at the Saratoga Hilton are available now for booking: https://book.passkey.com/go/NYSDA2024. The special room rate of $206 (for a standard room) is available through June 17th. Don’t forget to check our Training Calendar to see the list of NYSDA’s upcoming programs.

Have an Idea for a Training Program? Share it With Us!

We are currently accepting proposals for our in-person and virtual criminal and family defense training programs. NYSDA’s training goals include the promotion of client-centered representation and holistic and multi-disciplinary practice. We are grateful to the wonderful attorney and defense team professionals who help us train thousands of defenders each year. We cannot do this work without you. NYSDA is committed to enhancing the diversity of our training faculty, in areas including race, ethnicity, gender, work and personal experience, type of practice (institutional provider or assigned counsel), and geographic location. We want to ensure that our presenters reflect the diversity of New York’s public defense community, and our program topics address the issues defenders are dealing with in criminal and family court and related proceedings. Proposals should include a title and description of the training and the goals of the presentation. We encourage both individual and panel presentations. You may submit your proposal by clicking the link below, or via email to training@nysda.org.

Click Here to Submit Your Training Proposal

Please note, submissions may be considered for our 57th Annual Meeting and Conference (Sunday, July 21 to Tuesday, July 23, 2024, at the Saratoga Hilton and City Center) or other in-person programs and/or webinars throughout the calendar year. If you’d like to be considered for this year’s Annual Meeting and Conference, the submission deadline is April 22, 2024.We also welcome suggestions of training topics and/or presenters. If you have any questions, please reach out to Julia D’Agostino at training@nysda.org. Thank you for helping us continue to provide relevant and timely training programs to improve the quality of public defense representation.