Undercover Officer’s In-court ID Error Without Independent Source Hearing

A trial court erred by admitting into evidence an undercover officer’s in-court identification of the defendant as the person he saw selling drugs, a unanimous Court of Appeals said in April. A suppression hearing that revealed a lack of probable cause to arrest did not produce evidence supporting a determination that the officer’s identification of the defendant had a source independent of that arrest. Questions like “how long the seller was within his sight or the nature of his confirmatory identification of the defendant” were not explored. “The undercover's testimony at the suppression hearing was devoid of any proof that his in-court identification would be derived from his pre-arrest interaction with the seller, rather than the post-arrest confirmatory identification,” the Court noted. The requirement for an independent source hearing applies “where a confirmatory identification is the product of an illegal arrest,” the Court said, and ordered a new trial to be preceded by the requisite hearing. People v Williams, 2024 NY Slip Op 02128 (4/23/2024).

4th Department Holds MRTA Applies Retroactively

In People v Parker, the Fourth Department affirmed an Erie County decision granting the defendant’s CPL 440.20 motion. Following the passage of the Marihuana Regulation and Taxation Act (MRTA), the defendant moved to vacate his 2019 sentence, arguing that an enhanced sentence as a second felony offender using a prior felony marihuana conviction was invalid and that he should be resentenced as a first felony offender.

While the court noted that “[g]enerally, nonprocedural statutes ‘are not to be applied retroactively absent a plainly manifested legislative intent to that effect,’ [t]here is an exception, however, when the legislature passes an ameliorative amendment that reduces the punishment for a particular crime.” (Citations omitted). The Fourth Department held: “By providing the procedural mechanism for vacating or reducing marihuana convictions, the legislature necessarily determined that those crimes no longer serve, or that the lesser penalty sufficiently serves, the legitimate demands of the criminal law. In turn, we conclude that one of the ‘purposes’ (CPL 440.46-a[4][c]) served in substituting the misdemeanor for the felony conviction is to allow for retroactive amelioration of a predicate felony sentence.” (Citations omitted).

Second Department Determines Allegations of Terroristic Threats Are Not a Qualifying Offense

In People ex rel Ellis v Imperati, the Second Department sustained a writ of habeas corpus arguing that a Dutchess County Court illegally set bail on a complaint alleging the making of a felony terroristic threat under Penal Law 490.20.

The court found that while CPL 510.10(4)(a) as a general matter provides that all violent felonies are qualifying offenses, 510.10(4)(g) specifically carves out making a terroristic threat as a qualifying offense. Using “well-settled principles of statutory construction,” the court determined that whenever a statute contains both a general and specific provision, the “‘general applies only where the particular enactment is inapplicable.’” (Citations omitted).

Second Department Issues Two Favorable Rulings for Parents

In Matter of Jefferson (2024 NY Slip Op 02701 [5/15/2024]), the Second Department reversed and dismissed a finding of neglect against the father based on the police finding cocaine in the home of the father, mother, and children. In its decisions, the Second Department, citing the seminal case Nicholson v Scoppetta, stated that “a neglect finding will not be warranted absent evidence that the child suffered the requisite impairment, or that he or she was in imminent danger of suffering such impairment, as a result of the parent's conduct.” In dismissing the neglect, the court found that, although there was sufficient record evidence to infer that the father intended to sell the cocaine, there was no record evidence that he used drugs or “regularly engaged in the sale of drugs, or the manner in which he intended to sell the cocaine.” Further, although the cocaine was found in the father's bedroom closet, “it was located on a five- or six-foot-high shelf and was otherwise stored in a manner that was not readily accessible to the children.” (Citation omitted).

Decisions like that in Matter of Jefferson remind us that abuse and neglect cases are fact-specific and need individual attention. NYSDA’s Family Court Staff Attorney Kim Bode (kbode@nysda.org) is available to help defenders brainstorm their cases.

In Matter of Teofilo R.F. v Tanairi R.F. (2024 NY Slip Op 02814 [5/22/2024]), the Second Department reminds us of the high standard that must be met before a court can award a non-parent custody of a child over a parent. In this Article 6 custody case, the Kings County Family Court found that extraordinary circumstances existed to award guardianship and custody to the maternal grandmother and uncle. The Second Department held that the extraordinary circumstances finding lacked a sound and substantial basis in the record. “‘As between a parent and a nonparent, the parent has the superior right to custody that cannot be denied unless the nonparent establishes that the parent has relinquished that right due to surrender, abandonment, persistent neglect, unfitness, or other like extraordinary circumstances."’ (Citations omitted). The court continued: “In determining whether extraordinary circumstances exist, the court considers various factors, including, among others, the length of time the child has lived with the nonparent, the quality of that relationship, and the length of time the biological parent allowed such custody to continue without trying to assume the primary parental role.” (Citation omitted).

In this case, the mother intended for her children to live with the grandmother and uncle “only temporarily during her brief period of incarceration so as to prevent them from being placed in foster care, and that the children would be returned to the mother’s care and custody as soon as she was released.” Upon her release, the mother filed proceedings in family court to regain custody and continued to seek custody and participate in court-approved supervised and unsupervised visits with her children during the hearing, which lasted almost seven years. This delay did not constitute abandonment or persistent neglect and there was no other evidence that rose to the level of extraordinary circumstances. 

It is best practice for defenders to request the court to conduct a bifurcated hearing, the first prong of which is to determine whether the non-parent has the requisite standing to continue to a best interest determination. It also may be appropriate to file a motion to dismiss if the petition fails to allege extraordinary circumstances. Defenders with questions should email our Family Court Staff Attorney at kbode@nysda.org.

New Pay Rates for Experts Set by Chief Administrative Judge

Per an Administrative Order from the Chief Administrative Judge, the hourly rate for County Law 722-c and Judiciary Law 35 court-appoiinted experts has increased as of May 1st. For psychiatrists and physicians, the compensation has gone up to $400 an hour, certified psychologists $300, certified social workers $100, and licensed investigators $90. However, the cap on expert services has not changed; 722-c still provides that, “[o]nly in extraordinary circumstances may the court provide for compensation in excess of three thousand dollars per investigative, expert or other service provider.”

As a reminder, many public defense providers and assigned counsel programs have funding for experts that is separate from, and not governed by this Administrative Order. Defenders should check with their office or ACP regarding the availability of expert funds before filing a motion for a court-appointed expert.

New Bill Proposes a Much-Needed Overhaul to Forensic Science Commission

A recently introduced bill, S.9672, proposes to amend various provisions of Executive Law article 49-A (Commission on Forensic Science and Establishment of DNA Identification Index) and replace the existing 14-member Commission on Forensic Science with a new nine-member Commission. The bill underscores the importance of modernizing the State’s definitions of forensic laboratories and forensic testing, increasing transparency, and greater accountability of labs and their personnel following numerous lab scandals in New York (e.g., OCME, NYPD, Niagara County Sheriff’s Laboratory) and an epidemic of national scandals (see a recent investigation in Colorado and various atrocities cited by The Marshall Project in recent years).

Examples of major changes include:

• Language promoting transparency and adherence to scientific standards “including cognitive bias protections”
• Requiring forensic analysts to obtain a license and creating a system for licensure
• Implementing professional conduct standards for lab personnel and a disciplinary process when those standards are violated
• Publishing all results of analysts’ competency and proficiency tests
• Publishing all forensic testing methods on the lab’s website or forwarding them to the Commission for publication on a publicly accessible website

This year’s legislative session is ending later this week. We anticipate this bill and an Assembly companion bill will be introduced in the next session and NYSDA will provide updates as the bill progresses.



Association News

NYS Assembly Commemorates the 10th Anniversary of NYSDA’s Veterans Defense Program

On Thursday, the New York State Assembly passed a resolution, sponsored by Assembly Committee on Veterans' Affairs Chair Kimberly Jean-Pierre, commemorating the 10th anniversary of the Veterans Defense Program and “recognizing its crucial role in improving and strengthening the lives of justice-involved veterans and their families.” The resolution noted the work of NYSDA’s then-Executive Director Jonathan Gradess and then-Board Member (now VDP Special Counsel) Gary Horton in establishing the VDP. Susan Bryant, NYSDA’s Executive Director, Natalie Brocklebank, NYSDA’s Deputy Director, and Nancy Farrell, VDP’s Director, were introduced and recognized by the Assembly Chair. NYSDA and the VDP look forward to many more years of providing assistance to public defenders who represent veterans and members of the military and peer-to-peer mentoring to justice-involved veterans. For more information on the VDP’s services, visit www.nysda.org/page/VDP, email vdpinfo@nysda.org, or call 585-219-4862.

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 will open later this week. We will be sending a separate email with more information and the registration link. In the meantime, to make your hotel reservations at the Saratoga Hilton, visit 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.