CAL’s June Edition of Issues to Develop at Trial: Bruen Series

The June edition of Issues to Develop at Trial (IDT) from the Center for Appellate Litigation (CAL) is part of its Bruen Series. It offers defenders “a global template to consult and adapt” for challenging charges of unlicensed weapon possession under the amendments to the State’s gun licensing scheme following New York State Rifle & Pistol Ass’n Inc. v. Bruen, 597 US 1 (2021). Suggested challenges include: A constitutional challenge to the “good moral character” requirement found in Penal Law § 400.00(1)(b); A challenge under the 2d Amendment, Equal Protection, and the fundamental right to travel; A challenge to the indictment as jurisdictionally defective if it does not allege lack of licensure as an element of the charged offense; A challenge to New York’s complete ban on semi-assault weapons; and A challenge to New York’s complete ban on semi-assault weapons. Defenders are reminded to carefully review templates to decide whether any argument fits a particular client’s case and to tailor the template to the individual case. As always, NYSDA thanks CAL for providing IDT and other resources to the defender community!

Tim Murphy Shares Court of Appeals Summaries

Timothy Murphy, Assistant Federal Public Defender, Western District of New York, has shared with the defender community his summaries of April decisions from the Court of Appeals. Thank-yous, plural, are in order—not only has Tim shared these, he has also agreed to present at NYSDA’s Annual Conference (see below) a review of decisions from both the Court of Appeals and the U.S. Supreme Court.

Court of Appeals to Deny Amicus Briefs that May Create Conflicts

The Court of Appeals issued a Notice to the Bar regarding new amicus curiae rules that went into effect on May 8. The major change is that now “[a]micus curiae relief will be denied where acceptance of the amicus curiae submission may cause the recusal or disqualification of one or more Judges of the Court.”

The modification comes in the wake of the Court of Appeals’ split decision overturning Harvey Weinstein’s conviction. In that case, Judges Halligan and Troutman both recused themselves, however only Halligan indicated the recusal was based on recent service with an organization that sought to file an amicus brief.

In Weinstein’s case—which came from the First Department—Chief Judge Rowan Wilson chose judges from the Second and Third Departments to replace Halligan and Troutman. That practice has come under scrutiny as a result of split decisions in numerous controversial cases, as noted by the New York Law Journal in an article about the new rule.

Fourth Dept Reverses TPR, “Parent Should Have Been Granted a Second Chance”

In Matter of Rodcliffe M., Jr. (2024 Slip Op 03267 [6/14/2024]), the Fourth Department reversed a Termination of Parental Rights (TPR) disposition against a father whose rights had been terminated just two months after he was released from prison. In its decision the Fourth Department did not expressly find that the Monroe County Family Court Judge had abused its discretion in granting the TPR, but rather chose to substitute its judgment in determining that a suspended judgment was in the best interests of the young children. “At the time of the dispositional hearing—just two months after his release from prison—the father had found full-time employment, participated in weekly visitation with the children, had started communicating regularly with the children's foster family regarding the children, and was in the process of finding housing and completing a mental health evaluation and parenting classes, while the children were reportedly happy to be visiting with the father regularly.” The court concluded “that the father ‘should have been granted a “second chance” in the form of a suspended judgment.’” [Citation omitted.]

Registries: Listing People Based on Past Actions Creates Rather than Solves Problems

Listing the names of people convicted of specified crimes or determined to have committed specified acts or omissions in a registry, for the ostensible purpose of preventing future societal and/or individual harm, is not new. New York has had a Statewide Central Register (Central Register) of Child Abuse and Maltreatment since 1973 and has undergone myriad amendments. The Sex Offender Registration Act (SORA) was created by legislation in 1995. Residency and location restrictions for some people convicted of sex offenses, such as those included in the SORA registry (or under supervision following conviction) were included in the Sexual Assault Reform Act (SARA) of 2000; there have been amendments to these laws since their inception. Most recently and more locally, Rensselaer County passed a local law in January of this year requiring people convicted of drug sale crimes in the county to be listed in a registry.

Defenders need to know the potential and real consequences for clients and possible arguments to avoid or overturn such consequences. (See, e.g., NYSDA’s Client-Centered Representation Standards, Standard 17 (regarding “collateral consequences”). Developments regarding these various registries appear below.

NYCLU Files Federal Class Action Lawsuit Challenging New York’s Sexual Assault Reform Act

In late May, NYCLU announced they were challenging New York’s Sexual Assault Reform Act in federal court. SARA prohibits many people on the state’s sex offender registry from ever being within 1.000 feet of a school -- a near impossibility in many urban parts of the state.

Daniel Lambright, a senior staff attorney at NYCLU, found that “[r]esearch shows that banishment laws like SARA do not reduce recidivism, but instead make it impossible to obtain jobs, find housing, and become productive members of their communities. Laws that undermine rehabilitation make our communities less safe and must be abolished.”

The situation is further complicated by the refusal of the New York State Department of Corrections and Community Supervision (DOCCS) to release individuals required to register unless they can provide a SARA-compliant address. A 2020 NYCLU analysis found that in New York City, 84% of residential units are non-SARA compliant, while in Buffalo SARA restrictions cover 56.7% of residential parcels and 90.9% of hospital and health facilities. According to the New York Times, this results in about 250 New Yorkers a year remaining incarcerated despite the fact they are entitled to release.

For more on the lawsuit, see the complaint and an article in New York Focus.

State Central Register Used for “Coercive Control”

Criticisms of anonymous reports to the State Central Register, which make possible “malicious reporting” of child abuse or neglect, were detailed in a June 5th article posted by Jezebel. False reports made as “a coercive control tactic" by abusers and others are the target of legislation to end anonymous reporting, requiring those reporting to provide names and contact information. The Confidential Reporting Act also called the Anti-Harassment in Reporting bill (S902-B/A2479-A) passed the Senate but did not make it to the Assembly floor before the end of session; advocates will continue to seek passage of the bill in the next legislative session.

The article continued, “Currently, anyone can call the New York State Central Register and say a child is being abused or is in danger, and the state has to investigate. …. But it’s worth noting that in New York, of the 10,000 anonymous reports of child abuse and neglect every year, only 3.5 percent are determined to be credible, according to an AFFCNY report.” A recent report on the impact of the child regulatory system on Black families in New York, see below, included this statement: “The ability to report concerns anonymously to the hotline raises concerns around bias, threats, and false reports, particularly for Black families.” [Footnote omitted.]

Rensselaer County Law Establishes Drug Dealer Directory

A new county law was briefly noted by CBS6Albany on January 25th; the law establishes a registry “of names, alias and addresses for anyone 16 years old and older convicted of a drug sale crime” in Rensselaer County. On May 13th, New York State of Politics reported in more depth that “[t]he system is in effect, but is not retroactive, and has no published names or addresses to date.” According to the article, Assemblymember John McDonald expressed doubts about the legality and effectiveness of the new law, though he said he understood the concerns of those who passed it. The article said dozens of people had recently protested the registry, “demanding the policy be rescinded and slamming lawmakers for not holding public hearings on the topic.” A member of Troy 4 Black Lives pointed out that this registry was based on registries like SORA, which don’t achieve the goal of breaking the cycle of sexual violence. The registry would have a devastating impact on the community, which was not even consulted before the law was passed, the person speaking said. Other organizations said to be opposing the new registry are the Troy NAACP and Capital Region chapter of the New York Civil Liberties Union. The regional director of the NYCLU chapter said “[r]egistries are not effective — they never will be," adding, “it takes more resources, but if you really want to solve the problem, there are ways to do it and not through a registry." Potential lawsuits are said to be under discussion.

Report Examines NY Child Welfare System Impact on Black Families

In May, the New York Advisory Committee to the U.S. Commission on Civil Rights issued a report, Examining the New York Child Welfare System and Its Impact on Black Children and Families. The 134-page report is a culmination of a year-long investigation, consisting of hearings, testimony, comments, and reports from attorneys, advocates, and individuals impacted by the family regulation system. According to the authors of the report, it was “intended to focus on civil rights concerns regarding Black children and families impacted by New York’s child welfare system. While additional important topics may have surfaced throughout the Committee’s inquiry, those matters that are outside the scope of this specific civil rights mandate are left for another discussion.”

The report contains numerous findings that support the conclusion that many parents, advocates, and researchers have already reached: the family regulation system is riddled with systemic racism and in desperate need of an overhaul. The following is a sampling of the 29 findings: 

1) The modern child welfare system was formed and exists within the context of America’s history of racial bias.

2) Black families are reported to the hotline at higher rates than White families, raising concerns about bias in mandated reporters.

3) Black parents are disproportionately listed on New York’s State Central Register and experience immediate and long-term harms.

4) Black families are reported to the hotline by healthcare professionals for abuse and neglect at higher rates than White families experiencing the same issues, raising concerns about racial bias in healthcare settings.

5) Child welfare system investigation practices reveal concerns about due process, privacy, dignity, and trauma for families under investigation.

6) Poverty is conflated with neglect in the child welfare system.

7) Nonwhite, low-income families are more likely to be investigated for child abuse and neglect than White families.

8) Wealth does not protect Black families from disproportionately high rates of investigation.

9) An overwhelming majority of reports against families are unsubstantiated upon investigation, indicating that Black families are being needlessly surveilled, investigated, and monitored.

10) The New York State Family Court procedures and policies perpetuate racism and deny Black families due process, respect, and justice.

The report ends with a long list of recommendations for the federal Commission on Civil Rights. It calls for the Commission to elevate the issue, study or seek various focused studies, and “[p]romote a new paradigm of child welfare that emphasizes prevention, direct subsidies, support, restorative measures and family integrity over reporting, investigating, surveillance, and family separation.”

Family defenders who would like to brainstorm how the findings in the report might be used in litigation, or those who would like to share insights, are encouraged to contact Family Court Staff Attorney Kim Bode at kbode@nysda.org.

The City Posts “How To” Article About Rap Sheets

Prompted by the implementation of the Clean Slate Act due to begin in the fall, The City has published “How to Find Your Rap Sheet and Seal Your Criminal Record in New York.” While the article is part of a series on New York City’s legal system, the information in this specific article may be of interest to defenders and clients across the state. Segments include how to get one’s own criminal history, reasons for getting, checking, and correcting that record, and types of record sealing in New York. Sources credited with information in the article include the Legal Action Center, which offers some services to individuals living in New York State who have an arrest or conviction record, as noted at www.lac.org/legal-help.

Don’t Label Anyone a “Felon”

The president of the Marshall Project, a nonprofit journalism organization covering criminal legal system issues in the U.S., wrote a Washington Post op-ed following a recent high-profile conviction. Carroll Bogert noted that a new edition of the Associated Press’s stylebook states, “[d]o not use felon, convict, or ex-con as nouns.” Rather, journalists are advised, “when possible … use person-first language….” After describing the reasons for “person-first” language—to avoid dehumanizing and subjugating individuals—and examples of how the label “felon” cropped up repeatedly in news coverage of the recent conviction of a former U.S. President, Bogert made the following point. While the former President, unlike many people who have borne the pejorative label, is rich and powerful rather than from society’s margins, the media should not resort to calling him “a felon” because how we describe him affects others, too.

NYSDA has previously called on defenders and others to use “person-first” language. See for example page 9 et seq. in the June-October 2022 issue of the Backup Center REPORT.

Mental Health Care Needs Noted in Pride Month

Emphasizing that being LGBTQ+ is NOT a mental health condition or concern, Mental Health America (MHA) notes on its Pride Month webpage that members of the LGBTQ+ community face challenges that can affect mental health. The MHA website includes a LGBTQ+ Mental Health Resource Center with a variety of information and links.

The Active Minds Blog posted an item about how LGBTQ+ youth can manage their mental health “in a social world,” noting that June can be a time of pride but also “a time of rampant homophobia and transphobia.” Challenging such views can lead to online algorithmic spirals not worth engaging in; rather, youth can “seek support from peers and others in the community, learn about LGBTQ+ history, and share [their] experiences with others” to help create a safer space and protect well-being, the blog post suggests. Yet another source of ideas for mental health during Pride Month is an article on building queer community posted on rightasrain.uwmedicine.org/.



Association News

NYSDA Says Farewell and Wishes Julia D'Agostino Well in Law School, Welcomes Tess Malova as NYSDA’s New Legal Training Coordinator

NYSDA is happy to announce that Julia D’Agostino will be attending law school at Albany Law School this year and has passed the Training Coordinator torch off to Tess Malova. Before she joined NYSDA, Tess was the Program Coordinator for the Economic Democracy Initiative at Bard College. Tess is excited to bring her extensive experience with program management and event planning to support the team’s work. She is based in Albany and can be reached at Tmalova@nysda.org or Training@nysda.org.

Upcoming Training

Sunday, July 21 to Tuesday, July 23, 2024: NYSDA’s 57th Annual Meeting and Conference, Saratoga Hilton and City Center

Registration for the Annual Meeting and Conference is open. A full schedule is available here. The deadline for registration is this Wednesday, July 3rd. NYSDA’s Annual meeting of the membership will take place on Monday, July 22 at 8:30 am at the Saratoga City Center. A meeting notice will be sent to members soon. We look forward to seeing you in Saratoga!

Friday, August 2, 2024: 8th Annual Master Class in DWI Defense, Finger Lakes Community College

The 8th Annual Master Class in DWI Defense, co-sponsored by the Ontario County Public Defender’s Office and the National College for DUI Defense, will be held on August 2nd from 9:00 am to 4:40 pm. This in-person program is free, but you must pre-register by July 24, 2024. For more information and to register, click here.

Save the Date: Friday, September 27, 2024: All the Way Up: How to Take Your Digital Evidence Litigation to the Next Level, Albany Law School

This one-day in-person training will feature some of the most experienced, brilliant litigators in the digital evidence space. The sessions will cover the most recent developments in geolocation data, device and account searches, and lessons from State v. Pickett to prepare you to utilize discovery litigation for optimal case outcomes and successfully litigate source code whether you are litigating DNA evidence or digital evidence. The program will finish with a panel where we tie the topics of the day together and answer the audience’s questions from throughout the day in a conversational format. More information and registration will be available soon.