CDANY News 

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  • Tuesday, January 11, 2022 7:58 PM | Jennifer Van Ort (Administrator)

    Recently, CDANY joined NYSACDL & NYSDA in sending a memo of support for an increase in Assigned Counsel fees in New York. 

    In this memo, we respectfully requested that Section 722-b of County Law 18-b be amended as follows:

    • increase Assigned Counsel rates for 2022 to $120 per hour for misdemeanors and $150 per hour for felonies and other matters, for both in-court and out-of-court work.
    • add a provision that ensures an automatic annual cost of living rate increase.
    • payment for the increase in rates should be an expense absorbed by the State; with the counties continuing to pay their current share while the State pays the difference.
    • the statutory maximum amounts should be eliminated in order to encourage adequate time expenditure on individual cases.

    Please click here to read the full memo. 


  • Wednesday, November 17, 2021 10:35 AM | Jennifer Van Ort (Administrator)

    On November 17th, CDANY joined with the New York State Defenders Association (NYSDA) to send a letter to Gov. Hochul regarding the slate of nominees for the Judge Eugene M. Fahey vacancy on the New York State Court of Appeals.

    In particular, CDANY & NYSDA wrote to emphasize the importance of the life experience that judges bring with them to their judicial role, and to emphasize our request that Gov. Hochul selects a candidate with criminal defense experience.

    Please click here to see the full letter (PDF).

  • Friday, October 29, 2021 11:15 AM | Jennifer Van Ort (Administrator)

    CDANY, along with the New York State Association of Criminal Defense Lawyers (NYSACDL) and the New York State Defenders Association (NYSDA) issued the following Memo of Support for the "Less is More" Criminal Justice Reform.

    (Click Here for PDF Version)

    Memo Of Support

    “Less Is More” Criminal Justice Reform

    As the leaders of organizations that advocate for defense programs and individual attorneys that serve poor people and communities of color, we have read with dismay the articles in the media outlining the misinformation campaign directed towards Less is More. Once again, vital criminal justice reform is being mischaracterized by police officers, political candidates, and governmental officials in an attempt to scare our fellow citizens into supporting efforts to rollback needed reforms to our deeply flawed criminal justice system. Sadly, some in the media are all too willing to provide a forum for these actors, instead of offering an objective analysis of Less is More. The inaccurate, biased media coverage (largely parroting police talking points) has resulted in the public having an uninformed view of criminal justice reform, has led to pressure on the judiciary to incarcerate defendants (many of whom are People of Color), and contributed to the over-incarceration at Rikers Island.

    Less is More remedied a parole system that imposed harsh and unnecessary punishment for minor violations of parole conditions (known as “technical violations”) unrelated to criminal conduct. Prior to the passage of Less is More, New York lead the nation in reincarcerating individuals for minor parole violations. Indeed, in 2019 of people on parole whom New York sent back to prison, over 85% were incarcerated for technical parole violations. A disproportionate number of these were People of Color; Black people are 5 times more likely and Latinx people are 30% more likely to be re-imprisoned for a technical parole violation than whites.

    This needless incarceration not only harms individual lives and families without any proven public safety gains, but also drives up the population in state prisons and local jails, at significant cost. New York taxpayers spend more than $680 million annually to incarcerate people for technical parole violations.

    Following the lead of dozens of other states that reformed their parole systems (including “red” states like Louisiana, Missouri, and South Carolina) a unique coalition of New York district attorneys, sheriffs, current and former corrections and law enforcement officials, faith communities, and nearly 300 community, faith, labor, and advocacy groups around the state developed Less is More to reduce incarceration while enhancing public safety.

    Unfortunately, some are attempting to mischaracterize Less is More in an attempt to score political points, or push for the rollback of the criminal justice reforms that have begun to address systemic injustices in New York. They argue that Less is More will result in violent criminals being released from custody and imply that Less is More has resulted in the release of individuals accused of committing violent crimes. These arguments and implications are lies.

    Despite what the public is being told by those who wish to return to our system of over-incarceration, Less is More will enhance public safety. Less is More does not release from custody any person who is accused of committing a crime. Less is More does not prevent people on parole for being punished for violating parole rules. Less is More still allows persons on parole who commit minor violations of their parole to be punished- but that punishment must now be proportional to the violation. Thanks to Less is More, we will no longer incarcerate people on parole for lengthy prison sentences for missing an appointment, or being late for their curfew, or other minor parole violations.

    Instead, Less is More incentivizes successful completion of parole by providing “good time credit” to persons on parole who follow the rules. These times credits reduce their time of parole supervision. If they violate the rules, they may lose this good time credit, and for repeated violations they may be jailed for short periods of time. Importantly, Less is More does not interrupt a person’s attempts at successful reintegration by imposing draconian prison sentences for minor, non-criminal violation of parole rules. Thus, those who violate minor rules are still able to maintain employment, or attend educational or treatment programs, ensuring their successful reentry.

    For decades New York enacted criminal justice policies that resulted in over-incarceration that has decimated poor communities and People of Color. Our parole system was replete with policies that contributed to this needless incarceration instead of providing the support needed by the formerly incarcerated to resume their lives as productive members of society. Thanks to Less is More, parole will no longer be a system designed to reincarcerate, but instead will advance its original mission to support the formerly incarcerated as they rejoin their communities.

    Leanne Lapp, President

    CDANY

    Alice Fontier, President

    NYSACDL

    Susan Bryan, Executive Director

    NYSDA


  • Friday, August 13, 2021 3:41 PM | Jennifer Van Ort (Administrator)

    On Friday, August 13, 2021, the Chief Defenders Association of New York (CDANY), the New York State Association of Criminal Defense Lawyers (NYSACDL), and the New York State Defenders Association (NYSDA) sent a letter to the Commission on Judicial Nomination regarding the slate of nominees for the Judge Eugene M. Fahey vacancy.

    In the letter, CDANY, NYSACDL and NYSDA asked the Commission to exercise its authority to ensure that the slate of nominees it proposes is comprised of persons who will bring a much needed perspective to the Court of Appeals – attorneys with criminal defense experience who have demonstrated commitment to historically disenfranchised and impacted communities of color and a deep understanding of the systemic disparities that have long plagued poor people ensnared in the criminal legal system.

    The letter was jointly signed by CDANY President Leanne Lapp, NYSACDL President Alice Fontier and NYSDA Executive Director Susan Bryant. 

    Please Click Here To Read The Letter (PDF)


  • Wednesday, June 09, 2021 2:03 PM | Jennifer Van Ort (Administrator)

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    Both Houses Pass Justice Equity Act or Qualified Agency Bill Granting Public Defenders Direct Access to Clients’ Rap Sheets

    A Key Tool Needed to Confirm Expunged Marijuana Convictions Under MRTA

     

    (Albany) Both houses of the State Legislature passed a long-standing criminal justice reform bill that provides all public defenders and assigned counsel with direct access to their clients’ criminal history records efficiency (S. 7073, Bailey and A. 7729, Peoples-Stokes). Currently, these providers must rely on district attorneys, police departments, and judges for access to their clients’ rap sheets, and in a number of counties they are denied access, such as Onondaga County.

    Senator Jamaal Bailey said, "A fair and equitable justice system requires that public defenders and counsel have access to the proper resources needed to represent their clients. The passing of this bill creates a broader stroke of equity in our justice system. Instead of being steps behind, public defenders and legal aid societies will be in tandem with prosecutors by being granted automatic access to the criminal histories of their clients and being designated as ‘qualified agencies.’ As chair of the Codes Committee and sponsor of this bill, I am pleased that this bill passed both houses and that we will be a step closer towards equity and justice in our state."

    Assembly Majority Leader Crystal Peoples-Stokes said, “The Justice Equity Act or Qualified Agency bill, provides defense attorneys with an important instrument to enhance justice and improve efficiency. It is a key tool to confirm expunged marijuana convictions under the MRTA law, and long overdue.”

    Susan Bryant, Executive Director of the New York State Defenders Association (NYSDA), said, “Defense counsel cannot properly evaluate or investigate a case, assess a client’s eligibility for diversion or other programs, or determine the immigration consequences of their client’s case or the client’s predicate status without access to complete criminal history information. In 1990, the NYS Division of Criminal Justice Services (DCJS)* recommended such access. ‘Qualified agencies,’ as defined in Executive Law § 835(9), have access to criminal history information. This bill would add agencies and organizations that provide public defense representation and administrators of assigned counsel plans to the list of qualified agencies, so that those entities can enter into use and dissemination agreements with DCJS to access criminal history information.”

    Kevin Stadelmaier, Chairperson of the New York State Association of Criminal Defense Lawyer’s (NYSACDL) Legislative Committee, stated “With the passage of the Marijuana Regulation and Taxation Act (MRTA) this year, it is imperative that this bill be passed into law to provided public defenders with an important tool.  Allowing our attorneys to obtain their client’s criminal history report will assist in ensuring accuracy in the expungement of prior marijuana convictions.  Additionally, timely access to criminal history reports assists in providing effective representation at all stages of a criminal matter; including pre-trial release applications, case investigation, plea negotiation, and sentencing advocacy. We urge the Governor to sign this essential legislation.”

    Laurette Mulry, President of the Chief Defenders Association of New York (CDANY), said “We applaud the Senate and Assembly for passing this important bill which provides defenders direct and early access to criminal history reports. Delay in accessing this information slows the resolution of cases and causes court congestion.  Direct public defense access to this necessary information will expedite proceedings and save county resources.  Absent criminal history information, public defense lawyers cannot make effective pre-trial release applications, resulting in costly and unnecessary pretrial incarceration or supervision.” 

     

    Kathleen M. Dougherty, Executive Director of the Onondaga County Bar Assoc. Assigned Counsel Program, stated, “The Onondaga County Bar Assn. Assigned Counsel Program is especially grateful for the passage of the Qualified Agency bill by both Houses. We urge Governor Cuomo to sign the bill into law. Until now, we have not had direct access to rap sheets but instead have been compelled to rely on third parties to provide copies. As a result, access to our own clients’ rap sheets has been irregular at best. This bill’s expansion of the term “qualified agencies” to include indigent and public defense organizations allows us first-hand access and greatly improves our ability to fairly and diligently represent our clients at every stage of their cases.

     

    Background: This bill passed the Assembly and Senate in 2019, and was unfortunately vetoed by the Governor, who stated in his Veto Message that existing law and the new discovery reform law provide access. However, defenders need direct and early access to criminal history reports, which is not afforded by the discovery reform and other laws. Since 1997, public defense providers that operate defender-based advocacy programs have been allowed access to the DCJS database to obtain the criminal history information of their own clients under Executive Law § 243(3).

     

    *July 1990 DCJS’ Systems Improvements for Enhanced Community Safety (SIFECS) Public Defense State I Report


  • Wednesday, June 02, 2021 10:44 AM | Jennifer Van Ort (Administrator)

    The Chief Defenders Association of New York Calls on the State Legislature to Enact Key Criminal Legal System Reforms in Final Days of Session


    (Albany, NY) – The Chief Defenders Association of New York (CDANY) today called on state legislators and Governor Andrew Cuomo to prioritize and enact key criminal legal system reforms that would overhaul New York’s parole system, automatically clear eligible New Yorkers’ criminal record to end a cycle of perpetual punishment, and do away with harmful appeals waivers that deny defendants the opportunity to challenge injustices in the legal system.


    Laurette Mulry, President of CDANY, said: “This legislative session, New York State stood up for New Yorkers impacted by the criminal legal system by enacting historic measures that limited the use of solitary confinement, ended marijuana prohibition, and repealed the Walking While Trans ban. We celebrate these tremendous victories on behalf of Black and Latinx New Yorkers who are disproportionately targeted and punished by the state’s criminal legal system, but we also recognize that there is much more to be done. 


    As president of the Chief Defenders Association of New York advocating for people facing loss of liberty, family separation and related consequences in the legal system, I implore the legislature to prioritize and pass these critical remaining criminal legal system bills that begin to address and undo the harm of system involvement. This set of legislation seeks to streamline and transform the appeals process; overhaul the parole system; and undo the lifelong consequences of a criminal conviction. As this session draws to a close, we urge our state government to take these crucial steps to continue its commitment to equality and justice.”


    The Chief Defenders Association of New York calls on the New York State legislature to enact the following bills: 

    • S1279 (Bailey)/A5689 (Cruz) - An Act to amend the criminal procedure law, in relation to streamlining the assignment of appellate counsel for indigent criminal defendants

    • S1281 (Bailey)/A5688 (Cruz) - An Act to amend the criminal procedure law, in relation to facilitating appellate review of rulings that implicate issues of public concern 

    • S1280 (Bailey)/A5687 (Cruz) - An Act to amend the criminal procedure law, in relation to appellate review of the fairness and appropriateness of an imposed sentence 

    • S15-A (Hoylman)/ A3475-A (De La Rosa) - Elder Parole - An act to amend the executive law, in relation to parole eligibility for incarcerated persons over age fifty-five who have already served 15 or more years 

    • S1415-A (Rivera)/A4231A (Weprin) - Fair and Timely Parole - An act to amend the executive law, in relation to findings of the state board of parole necessary for discretionary release of incarcerated persons on parole

    • S1144 (Benjamin)/A5576 (Forrest) - Less is More - An act to amend the executive law and the penal law, in relation to revocation of community supervision

    • S1553A (Myrie)/A6399 (Cruz) - Clean Slate - An act to amend the criminal procedure law, the executive law and the correction law, in relation to automatic expungement of certain convictions


  • Friday, April 30, 2021 1:26 PM | Jennifer Van Ort (Administrator)

    Today, CDANY released three memos of support for important pending legislation in New York State.

    - Bills S1279/A5689; S1281/A5688; and S1280/A5687 that seek to uphold the important rights of criminal defendants pursuing appeals;

    - Bill S.2888/A.2266 that seeks to raise the criminal mischief monetary threshold set in 1915; and

    - The Clean Slate Legislation that would automatically clear conviction records for all New Yorkers who have successfully served their sentence.

    Read More Here: http://bit.ly/CDANYDocs


  • Tuesday, March 02, 2021 9:57 AM | Jennifer Van Ort (Administrator)

    On Tuesday, March 2nd, CDANY issued a Memo in Support of Legislation Enacting a Prohibition Against the Use of Chemical Agents by Police Against Children, currently on the Senate and Assembly floors as S4002 (Brouk) / A5449 (Meeks). 

    From the Memo

    "The membership of the Chief Defenders Association of New York State (CDANY) observed with shock and horror as the above described weapon was recently utilized on a defenseless, handcuffed 9 year old girl by members of the Rochester Police Department. The child was experiencing a mental health crisis and was crying out for her father; she was being placed in a police car by several adult police officers. The use of pepper spray in this instance was completely inexcusable.

    For this reason and to protect children in our communities in the future, CDANY submits this memorandum in support of S4002 (Brouk)/A5449 (Meeks). This Bill is a necessary and obvious first step in police reform, and CDANY urges its immediate passage."

    Please see the full memo here

  • Thursday, February 18, 2021 1:44 PM | Jennifer Van Ort (Administrator)

    On February 18, 2021, CDANY sent a memo to the New York State Legislature in opposition to permanent virtual arraignments. Please see the memo below and available via PDF here

    CDANY MEMORANDUM IN OPPOSITION TO
    PERMANENT VIRTUAL ARRAIGNMENTS

    Arraignments commence a criminal proceeding, making them one of the most important court appearances in a criminal case. Persons accused are notified of the substance of charges, enter a not guilty plea, are notified of orders of protection or loss of licensing privileges, and can face potential pre-conviction incarceration. In New York, arraignments have always been live appearances, in Court, with arraigning judges being required to assign counsel. The Hurrell-Harring settlement and statewide expansion provide funding for required in-person counsel at arraignment.

    The Governor’s Executive Budget correctly points out that, under his leadership, New York Courts were able to quickly and successfully pivot to conducting arraignments in a virtual setting during the court system shutdown necessitated by the COVID crisis. This was a necessary step during a time of an unprecedented health crisis. Unfortunately, the Governor has also stated his intention to render essential in-person arraignments obsolete.

    CDANY is calling on the legislature to protect the integrity of the judicial system by requiring that live arraignments return when courts are reopened.

    Virtual arraignments deprive the accused of effective assistance of counsel. The personal appearance of counsel is necessary to develop an attorney-client relationship, to foster trust, and to privately obtain information necessary to enable zealous advocacy. Much critical communication is lost when using screens.

    Empirical evidence demonstrates that virtual arraignments lead to worse outcomes for the accused. The virtual system proposed by Governor Cuomo was already tried in Cook County, Illinois, where an ill-fated televised arraignment protocol was implemented in 1999. A lawsuit ensued, alleging that the system was unconstitutional and denied arrestees both due process and effective counsel. Bail outcomes of virtual arraignments were studied as part of the lawsuit, revealing that bail was a staggering 51% higher than it had been before the televised system was implemented. Plaintiff’s counsel largely attributed the disparity to the inherent dehumanization of those appearing as defendants in a virtual setting.

    Virtual arraignments devalue the Constitution and the integrity of the Court process. Chief Judge DiFiore affirmed that virtual arraignments were a temporary, emergency measure, as the law requires arraignments be conducted in person. Clients are constitutionally entitled to private, privileged conversations with counsel before and during court proceedings, which is not feasible in a virtual setting. A judge’s ability to gauge a defendant’s mental status and understanding of legal proceedings is also impeded. Also, virtual appearances lack necessary formality and decorum by their very nature.

    Virtual arraignments exacerbate the divide between the rich and the poor, creating a Tale of Two Justice Systems: Poor people are far less likely to have access to the resources necessary to make virtual appearances adequate. Poor rural New Yorkers often do not have access to internet at all, and clients living in areas where internet is available may not be able to afford it. Many indigent clients do not have computers or smartphones. With a virtual system in place, a poverty divide is evident in the provision of legal representation--poor clients are more likely to have counsel assigned, and may be unable to meet their attorney until arraignment, whereas people with resources to retain can meet with attorneys beforehand. Therefore, rich clients are afforded attorney-client privilege and better informed advocacy, while poor individuals have impersonal representation, hampered by lack of time and proximity.

    Virtual arraignments are less efficient. Pre-COVID, many individuals could be arraigned consecutively, in a single docket. Clients were interviewed privately prior to appearance, counsel assigned, cases heard by judges, and paperwork served and processed. In the virtual system, attorneys must wait for phone lines or virtual rooms to open before speaking to clients. Often, links do not work, or are sent incorrectly or to the wrong person. Internet connections fail, and programs crash. When multiple people speak simultaneously, speakers cannot be heard, making the record inaudible for court reporters and interpreters. Paperwork must be emailed, causing delay and issues with data storage. Clients cannot sign or be served orders of protection. This has culminated in arraignment calendars taking far longer per case than under old systems. The issue is even more pronounced in counties with Centralized Arraignment Parts in their jails, where deputy sheriffs are forced to act as IT professionals, court clerks, and courtroom security. During the COVID shutdown, there have been far fewer cases requiring arraignment; once courts are fully open, a virtual arraignment system would lead to increasingly bottlenecked calendars.

    Virtual arraignments deprive the public of access to the Courts. The Public cannot walk in to a virtual courtroom, and links have to be carefully shared to avoid internet trolls. This results in family and friends being unable to attend arraignments to vouch that their loved one has a place to live, or will be supervised if released.

    It is impossible to prevent recording of virtual proceedings. It is currently illegal to record court proceedings without a court order. This is simply impossible to police in the digital sphere, and could lead to permanent recordings on social media and elsewhere on the internet.


  • Tuesday, February 02, 2021 7:49 PM | Jennifer Van Ort (Administrator)

    Albany, NY – The Chief Defenders Association of New York (CDANY) today commended state lawmakers and Governor Cuomo for approving legislation that would remove from the penal code a provision related to prostitution that has been routinely enforced in a manner that is discriminatory and without legal justification. (S1351/Hoylman; A3355/Paulin).

    Laurette Mulry, president of CDANY said: “This bill would end the use of the penal code (Section 240.37) as a pretext for profiling and prosecuting women of color -- transgender women, in particular. In striking this provision from the law, the legislature serves justice and fairness.”

    Penal Law Section 240.37 prohibits loitering for the purpose of engaging in a prostitution offense. Historically, this law has been used to arrest people for a range of lawful conduct, such as “repeatedly” waving at a person in a vehicle, wearing a skirt that a police officer deemed too short, or merely speaking with someone on the street. The overwhelming majority of those arrested for the offense have been women – most often women of color and transgender women.

    Enforcement of the statute has led to intrusive searches of those targeted by its enforcement – a patently unconstitutional practice that has resulted in degrading and dehumanizing women of color, transgender women, non-binary people of color, and the trafficking victims these laws are meant to protect.

    CDANY was created by a group of leaders of public defense organizations from across New York State. The organization advocates for those who administer mandated legal representation programs, as well as their staff and their clients, in an effort to bring positive change to the criminal justice system. CDANY called for repeal of the so-called “Walking While Trans” offense in its legislative reform agenda for 2021.

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