Late State Budget: Mostly Flat-Funding for Public Defense; Ability to Sweep Designated Defense Funds; and Adds More Crimes

This year’s State Budget, enacted almost three weeks after the deadline, failed to deliver the resources public defense providers need and created more crimes and elevated punishment for others, meaning more people will be ensnared in the criminal legal system and public defense caseloads will rise, while the interventions and support that would meaningfully improve public safety are overlooked. At the same time, the Budget gave the State authorization to take up to $234 million from the special revenue fund specifically designated to improve public defense for undisclosed purposes. Details about defense funding and legislative changes are available in NYSDA’s enacted budget memo.

New and amended laws include:

• New Penal Law 120.19: Assault on a retail worker (class E felony), effective October 17, 2024.
• New Penal Law 165.66: Fostering the sale of stolen goods (class A misdemeanor), effective November 1, 2024.
• Amendments to grand larceny offenses (Penal Law 155.30, 155.35, 155.40, and 155.42), to allow aggregation of the value of retail goods or merchandise stolen, effective July 19, 2024.
• Addition of 22 crimes to the list of Hate Crimes in Penal Law 485.05, effective June 19, 2024.
• Amendments to Penal Law 120.09, assault on a judge, and establishes a new Penal Law 120.09-a, aggravated assault on a judge, a class B felony, effective July 19, 2024.
• Amendments to Penal Law 240.30 (second-degree aggravated harassment) and Penal Law 120.05 (second-degree assault), effective July 19, 2024.
• Amendments to Penal Law article 155 for deed theft, effective July 19, 2024.

The final budget includes $19.5 million for family defense representation, which is $5 million more than last year (and $15 million more than the Executive proposed budget). However, the ILS Office sought $50 million for parental representation. While additional funding is welcomed, the State’s failure to acknowledge the crisis in family defense by appropriating an amount that would allow defenders to begin to make substantial efforts to reduce caseloads, hire defense team members, and make other improvements, in conjunction with a sweep of up to $234 million from the ILSF, shows a disregard for family defense clients and the attorneys who represent them. We will continue to fight for family defense funding.

NYSDA’s budget has been restored to the same level as last year. Unfortunately, our requests for additional funding for our Backup Center’s Discovery and Forensic Support Unit and the Veterans Defense Program were not included in the final budget. From all of us at NYSDA, thank you to all of you, the public defense community, and others who supported our funding request. We look forward to continuing to provide you with assistance through our Public Defense Backup Center and Veterans Defense Program.

Officer Insufficiently Familiar with Defendant to Make Valid Video ID

“[S]omeone who is not an eyewitness to a crime” may “testify to a jury that the defendant is the person depicted in a photo or video” when “the witness is sufficiently familiar with the defendant that their testimony would be reliable, and there is reason to believe the jury might require such assistance in making its independent assessment.” Failure to show that the proffered witness and their testimony meets those requirements makes admission of the testimony error. So the Court of Appeals just said in People v Mosley (2024 NY Slip Op 02125 (4/23/2024).

The Court noted increasing deployment of surveillance, increasing use of lay opinion identification testimony, and the resulting increase in court cases raising the issue of admissibility of such testimony, along with historical caution as to lay opinion testimony. Admission of such testimony is committed to the sound discretion of trial courts, reviewable for abuse of discretion. The test adopted in Mosely for such review is a totality of the circumstances one. If the witness had not “had sufficient contact with the defendant to achieve a level of familiarity that renders the lay opinion helpful," the jury should be left to make its own conclusions about identification without the witness’s testimony.

The decision described a police officer’s dealings with the defendant prior to viewing “grainy” video footage from police cameras showing a man running in the street and firing three shots into a van; the officer identified that man as the defendant. The Court found the prosecution failed to show the officer was “sufficiently familiar” with the defendant to testify to that identification. The officer’s interactions with the defendant had been limited–no “street” interactions, only a few at the police station–and the officer was not familiar with the defendant’s appearance at the time the video was recorded. Nor did the officer connect any distinctive traits of the defendant to what was visible in the video—his general statements about “body type” etc. were not sufficient (and were only made at trial, not while the foundation for testimony was being laid). The officer said during voir dire that he had looked at police-related and Facebook photographs of the defendant; the Court said that looking at photographs was not a proper basis for familiarity.

The prosecution also failed to show that the jury needed the witness’s help. If, as the officer testified, the defendant “‘as he sits there now ... is the same as he appears in that video,’ there was no reason to think that the jury would not be equally well positioned to identify the defendant based on his appearance in the courtroom,” the Court said.

In a concurrence, Judge Rivera did “not adopt the majority’s totality of the circumstances test because it partially relies on irrelevant and subjective factors which may hinder the truth-seeking process.” Where a video image is so poor that a perpetrator’s physical characteristics cannot be discerned, “such videos are inadmissible for identification purposes as a matter of law,” she wrote. And where a video’s quality supports its admission, “the trial court still must impose strict limitations on noneyewitness opinion testimony describing the video to ensure that the trier of fact independently determines whether the video depicts the defendant.” Only where a defendant has changed in appearance between the time of the video and trial, and where a defendant has a defining feature not visible to the jury (such as a limp, or even distinctive clothing), should a person who did not witness the crime but was familiar with the defendant at the time be allowed to give identification testimony from a video. Rivera also pointed out the risk of undue influence of jurors where the non-percipient witness is a member of law enforcement, and the limitation on cross-examination presented by that situation. And she noted that her concerns were not limited to testimony about video, but would apply to facial recognition evidence and other technologies.

Judge Troutman took no part in the decision.

Finding of Education Neglect Reversed

The Second Department reversed a finding of education neglect, concluding that the record did not support the Queens County Family Court’s determination that the mother failed to provide her daughter with an adequate education. In Matter of Kaira K. (2024 NY Slip Op 02054 [4/17/2024]), the court stated that the overwhelming majority of absences, which occurred during the pandemic, “occurred during the first half of the school year as a result of bussing issues, which the mother attempted to and ultimately did remedy, as well as technological issues the mother experienced when the child was attempting to attend school remotely during the COVID-19 pandemic.” The court did affirm the findings of neglect on other grounds. This case is a good reminder that Article 10 cases are fact-specific, and attorneys should look at every case through a fresh lens while building a theory of their case. Family defenders are encouraged to contact NYSDA’s Family Court Staff Attorney Kim Bode to brainstorm cases or with other questions regarding family court matters.

Denial of Motion to Vacate Default Custody Order Reversed

In Matter of Savanna II v. Joshua JJ. (2024 NY Slip Op 01853 [4/4/2024]), the Third Department reversed the denial of a father’s motion to vacate an order that suspended his overnight visits on default, finding that the father’s notification to the court that his car wouldn’t start and his appearance at the courthouse later that day after he got his car started constituted a reasonable excuse for his default and he had a meritorious defense. The Third Department noted that “disposition on the merits is favored” and “[courts have generally] adopted a liberal policy in favor of vacating defaults” in Family Court Act article 6 custody proceedings. Before suspending overnight visits, the family court “failed to take sworn testimony in support of the mother’s petition at an evidentiary hearing, and the court did not make a threshold change in circumstances determination or conduct a best interests of the child analysis.” [Citations omitted.]

Defenders are reminded that NYSDA has a sample motion bank available on the Family Defense Resource page, which includes a motion to vacate an order. Although the above case deals with a motion to vacate based on excusable default, CPLR 5015 lays out several other reasons why relief from a judgment or order may be granted.

Commission on Prosecutorial Conduct Publishes Proposed Operating Rules and Procedures

As discussed in the March 20, 2024 edition of News Picks, Susan Friedman was recently announced as the inaugural administrator of the New York State Commission on Prosecutorial Conduct (CPC). The law establishing the CPC is found in Judiciary Law article 15-A. In April the CPC published their proposed operating rules and procedures in the State Register. The proposal outlines in some detail the CPC’s proposals for processing of complaints against prosecutors, their investigatory and hearing procedures, and the remit of their ultimate disciplinary options.

Of particular note, under the proposed rules, a prosecutor -- or any subpoenaed witness -- has the right to counsel at “any and all stages of the investigation.” In addition to subpoena power over witnesses, the Commission would be able to compel the production of “any books, records, documents, or other evidence” deemed relevant to their investigation. In terms of final dispositions, CPC would send its findings to the New York State Attorney Grievance Committee of the appellate department in which the prosecutor practices, and if that recommendation includes that the prosecutor be “removed or retired,” that would also be sent to the Governor and the relevant District Attorney.

Public comment on the proposed rules can be sent by June 21st to: Michael A. Simons, Chair, New York State Commission on Prosecutorial Conduct, St. John’s University, 8000 Utopia Parkway, Queens, New York 11439, (718) 990- 6601, email: Regulations@cpc.ny.gov. NYSDA plans to submit comments on the proposal and encourages defenders to submit comments to the CPC and share them with NYSDA via email at info@nysda.org.

After Hochul Veto, OCA Implements Bail Trainings for Judges

In late 2023, Chief Judge Rowan D. Wilson amended section 17.3 of the Rules of the Chief Judge to give greater discretion to the Chief Administrative Judge and the Administrative Board of the Courts when it comes to judicial trainings. In early April, Chief Administrative Judge Joseph A. Zayas announced the first wave of additional training, mandating four hours of “educational programming on the bail laws” for judges in their first year of handling criminal cases, two hours for judges in their second year, and one hour for all other judges. In addition, trainings will be provided “regarding the rules governing discovery in criminal cases, and the discretion judges have in determining sanctions for discovery violations.” The trainings will be offered via The New York State Judicial Institute.

These voluntarily-created trainings come after State Senator Hoylman-Sigal’s legislation that would have mandated three hours of annual training on bail for all NY criminal court judges was vetoed last year by Governor Hochul.

Studies Found Increasing Enforcement and Continued Racial Disparities for Civil and Criminal Summonses in New York City

In March and April of this year, The Data Collaborative for Justice published two reports on civil and criminal summonses in New York City. Their stated purpose is “to assess racial and neighborhood disparities” in the issuance of summonses by the NYPD after the enactment of the City’s 2016’s Criminal Justice Reform Act (CJRA). That legislation made five common legal violations eligible for civil summonses (public consumption of alcohol, public urination, parks offenses, noise, and littering/spitting), and limited the circumstances in which a criminal summons could be issued.

The report finds that while CJRA had its intended effect by reducing the number of criminal summonses given out - a 90% decline from 2013 to 2022 - that trend changed in 2022, where criminal summonses actually increased 62%. The same spike was seen for civil summonses, which were issued four times as often in 2022 as they were in 2021, with a 22% increase as compared to 2019. Racial disparities continue to exist for both types of summonses, but disparities were larger for criminal summonses; in 2022, Black people received 44% of the criminal summonses, Hispanic people received 41%, and white people received 8%.

Hundreds of Protestors at New York College and University Campuses Arrested

In late April and early May, hundreds of pro-Palestinian protestors have been arrested on the campuses of Columbia, Fordham, and New York University, as well as the New School, City College of New York, and SUNY New Paltz, Purchase, and Stony Brook. According to the New York Civil Liberties Union, who have been monitoring pro-Palestinian protests for more than six months now, “these demonstrations have been largely non-violent. When there has been violence, more often than not it has been police officers, called in by university administrators, who have instigated it.” 

Videos and news articles have documented the aggressive, militarized police response to the protests, which has resulted in some demonstrators being hospitalized, and there have been reports of the NYPD illegally removing students’ hijabs. Corinna Mullin, a professor of political science at CUNY’s John Jay College of Criminal Justice who was arrested, cited inhumane conditions “including no access to water or a bathroom for hours” as well as “protesters being denied access to medical treatment.” Inside Columbia’s Hamilton Hall, a NYPD sergeant accidentally discharged his weapon, though “officials conceded that they were in ‘no rush’ to disclose the fact that the incident took place to the public.” 

According to the Manhattan District Attorney’s Office, the subsequent charges were mostly low-level trespass misdemeanors, along with some felonies including assault, weapons possession, and burglary. However, despite the low level of charges, almost no protestors were given summons or desk appearance tickets. At SUNY New Paltz, over a hundred people were charged with trespassing and were “released after being processed.”

The Legal Aid Society issued a statement condemning the NYPD’s “unlawful actions,” saying the department was “detaining and processing demonstrators who were ultimately charged on low-level offenses and who should have received an appearance ticket.” In addition, LAS noted that many protestors had been in custody longer than 24 hours, despite “[l]awyers from various public defender offices and other organizations [being] present in court last night and ready to quickly arraign everyone but many protesters were not produced.” In the counties outside of New York City where arrests have occurred, it is unclear how many people were held in custody, how many were issued appearance tickets, and the impact that such a large number of arrests will have on public defense providers.

Continue Providing Zealous Representation

A New York Law Journal column on April 8th observed that “lawyers, criminal lawyers especially, are no longer specifically instructed by New York’s rules or canons to represent their clients ‘zealously.’ What?” Joel Cohen examines the history of “zealous” representation requirements, and laments that in New York, while "we—each and every criminal lawyer—believe in that righteous duty,” we “can no longer cite it (in our defense) as a black letter principle that purports to guide us.” He does not point to other sources of support for zealous representation, but they exist, certainly for lawyers appointed to represent clients unable to afford counsel (in both criminal and family matters).

One example is the New York State Bar Association’s 2021 Revised Standards for Providing Mandated Representation, which set out what is needed to ensure an attorney can provide “zealous, effective, and high quality representation” by both criminal and family defenders. See Standards I-1, I-2, I-5, I-7, I-10, and I-11. Another example is the Indigent Legal Services Office’s Standards for Parental Representation in State Intervention Matters, adopted in 2015; these “emphasize timely entry into the case and diligent, zealous advocacy throughout” (Preamble), using the word “zealous” in Standards E, F-4, and O. Creation or revision of both sets of standards post-date the 2009 Rules of Professional Conduct that Cohen criticizes. A national example of standards requiring zealous representation is the American Bar Association’s Standards for Criminal Justice The Defense Function (2017), Standards 4-1.2(b) and (d), 4-3.4(e), and 4-9.2(j).

NYSDA’s own standards have not been “watered down”—and we urge defenders to continue zealously representing their clients. See our Standards for Providing Constitutionally and Statutorily Mandated Legal Representation in New York State (2004), Standards I, II.B, VIII.A.1 and VIII.B.1 and our Client Advisory Board’s Client-Centered Representation Standards (also adopted by our Board of Directors 2005), Standard 14.

ShotSpotter Evidence Admitted in Civil Suit After Successful Confrontation Challenge in Criminal Case

A recent federal civil lawsuit by Silvon Simmons against the City of Rochester and several police raised questions about the admissibility of ShotSpotter evidence that had been excluded from Simmons’ criminal case after a successful Confrontation Clause challenge. The civil suit ultimately ended in a jury verdict for the defendants.

In April 2016, the Rochester Police Department (RPD) followed a report of an alleged gunshot incident. They arrived, saw Simmons, and purportedly told him to stop, suspecting he was armed. One officer alleged that Simmons pointed a gun at him and ran, then the officer heard a gunshot. That officer shot four rounds, three of which struck Simmons, severely injuring him. There was no physical evidence linking a handgun found approximately 10 feet from Simmons’ body to him. Additionally, no projectile was found from the alleged first shot heard by the officer. It was only after prompting from the RPD about the incident that Paul Greene, a ShotSpotter technician, changed the report to read five gunshots were detected where initially he believed there were several sounds, some of which were helicopter blades. Defense counsel subpoenaed ShotSpotter records, but these records were never produced. After an unsuccessful suppression motion, the ShotSpotter audio was admitted into evidence and Greene testified as an opinion witness, not an expert witness, at trial. 

A jury originally convicted Simmons of second-degree criminal possession of a weapon, but following a motion to set aside the verdict, a new trial was ordered. The court found that the ShotSpotter evidence should have been precluded because Greene’s testimony was “speculative”, and since ShotSpotter’s technology is proprietary and Simmons never received records he subpoenaed to help understand the characteristics of gunshots the software identifies, his confrontation rights were violated as he could not effectively cross-examine Greene. With the ShotSpotter evidence disallowed, the prosecution declined to pursue a new trial.

As The Daily Record reported, the ShotSpotter evidence was admitted in Simmons’ civil trial for the jury to determine “whether the first sound is a gunshot or not,” per a March 22 decision. The court, having previously found that the plaintiff “failed to raise a triable issue of fact as to whether ShotSpotter fabricated evidence of the initial gunshot,” held that Simmons could not offer evidence of fabrication or altered audio during his civil trial. The court deemed the ShotSpotter evidence to be relevant and reasoned it would not unfairly prejudice Simmons. Simmons’ attorneys are now contemplating an appeal of the verdict or an appeal to limit ShotSpotter testimony.



Association News

First 2024 Issue of the Public Defense Backup Center REPORT Online

The January-March 2024 issue of NYSDA’s newsletter, the Public Defense Backup REPORT, is available on the NYSDA website. NYSDA members should have received their hard copy. Have questions? Please contact the Backup Center at info@nysda.org or 518-465-3524.

Wednesday, May 29, 2024, 1:00 – 2:30 pm: Mitigation 101, with Lauren Harris, Mitigation Specialist and Mitigation and Writing Consultant, The Bronx Defenders, and Natalie Brocklebank, Deputy Director, New York State Defenders Association. Registration and program information for this webinar is available here.

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, however, this year we will not be offering a remote option. The Annual Conference and CLE programming will be for in-person attendance only. 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