CDANY Statement RE: FY 2023 Budget:
“Clients Used As Election Year Pawns”

The public defense organizations that make up the Chief Defenders Association of New York (CDANY) collectively defend 400,000 New Yorkers in the criminal, family, and appellate courts of New York State every year. We are disappointed that our clients were used as election year pawns in New York’s FY 2023 budget.

We are disappointed that fear won out over the truth, leading to rollbacks of the necessary and much needed criminal justice reforms of just three years ago. Every objective analysis of the bail reforms of 2019 shows that it has been an unqualified success. The Governor, as well as Senate and Assembly leaders, acknowledged that bail reform was not responsible for the increase in crime that is occurring across the country. Despite this, the discussion surrounding bail, and the equally important discovery reforms, hijacked the budget process and were used by some for political gain. Our clients, the poor and marginalized communities of New York State, particularly communities of color, will suffer the most from these rollbacks. 

CDANY is equally disappointed that the increase in compensation paid to Assigned Counsel attorneys was not included in the budget.  These fees were last raised 19 years ago. Paying attorneys 2004 rates in 2022 ensures that the most qualified and experienced attorneys will not represent indigent clients in New York’s court system.  This most recent slap in the face to assigned counsel programs ensures that New York is not fulfilling its constitutional obligation to provide meaningful, quality representation to indigent members of our community.

CDANY will continue to work with the Governor, the Legislature, and the public to ensure that future criminal justice policy is based upon facts, not fear.  We will further fight to ensure that all New Yorkers, receive the best possible representation regardless of their socio-economic status.

(NEW YORK, NY) - The Chief Defenders Association of New York (CDANY), New York State Defenders Association (NYSDA), New York State Association of Criminal Defense Lawyers (NYSACDL), and others released a comprehensive statewide survey today detailing the widespread successes of discovery reform, which was signed into law in 2019.

 

The survey results revealed that the vast majority of criminal defense attorneys across New York State believe that discovery reform has achieved the desired results and has positively impacted not only their ability to provide competent representation, but also the fairness of New York’s criminal justice system. Furthermore, these reforms were needed because New York’s previous criminal law discovery scheme, embodied in CPL Article 240, was considered by many to be one of the most regressive in the nation, one which deprived accused people of access to critical evidence required to make informed decisions during the pendency of a case.

 

On February 25, 2022, CDANY, NYSDA, and NYSACDL distributed the survey to their respective memberships, which include attorneys who engage in criminal defense representation for public defender offices or legal aid societies, attorneys who engage in criminal defense representation as part of an assigned counsel program (ACP), and attorneys who engage in criminal defense representation as a privately retained attorney, and received 509 unique completed survey responses.

 

According to the survey:

• 93 percent of respondents confirmed that their ability to evaluate cases and develop case strategies improved;
  
  

• 92 percent of respondents confirmed that, because of the early sharing of evidence and other critical information, their ability to investigate cases improved;
  
  

• 93 percent of respondents confirmed that discovery reform improved their ability to advise clients about the charges, the case against them, and whether to accept a plea offer;
  
  

• 79 percent of respondents confirmed that their ability to effectively communicate with clients, an essential part of developing the defense strategy, improved;
  
  

• 81 percent of respondents confirmed that their ability to negotiate with prosecutors improved;
  
  

• 77 percent of respondents confirmed that receiving discovery before preparing written motions improved their motion practice;
  
  

• 90 percent of respondents confirmed that their ability to prepare for evidentiary hearings and/or trial greatly improved; and
  
  

• 80 percent of respondents confirmed that discovery reform made criminal case proceedings more fair. 
  

 

Some anecdotes from the survey that underscore the improvements resulting from discovery reform and the progress made towards fair representation include:

• “I used to work as a defender in NJ which has open file discovery, and the Superior Court prosecutors there had no issue collecting discovery from dozens of municipal police departments and handing it over to the defense within 5 days of arrest.”

 

• “I am a former prosecutor and have been doing defense work for over 20 years since. This discovery change has been monumental in basic fundamental fairness. In the past, discovery was withheld until the last minute on criminal cases where a client’s liberty or freedom was a risk, yet in civil cases - disputes over money - discovery was provided well in advance of trial. Thank you for eliminating the antiquated unfair discovery procedures of the past.”

 

• “Having worked for several years in a jurisdiction with open discovery (FL) prior to working in NY State, I was shocked, appalled, and horrified that discovery was not available to criminal defendants. It is impossible to have a fair proceeding, effectively negotiate, or advise clients without open and available discovery. It boggles my mind that it was allowed to go on for so long in NY….. Clients don’t have to make decisions that will impact their lives significantly with zero information or go into a hearing or trial blindfolded. It is much better for judicial efficiency if everyone has the same information so appropriate pleas can be negotiated and appropriate cases taken to trial.”

 

• “Seeing the evidence early on against my client has allowed me to effectively advise my client as to whether to testify before the Grand Jury, waive time to negotiate a pre-indictment plea, or whether to file motions or try to resolve a case…The amount of information we now can access, especially pre-indictment, is staggering compared to before discovery reform. I am now much more able to formulate defenses and better advise clients in plea negotiations.”

 

Leaders of CDANY, NYSDA, AND NYSACDL emphasized the importance of hearing from defense attorneys in every county in the state about the implementation and impact of the landmark discovery reform laws. 

“This report offers an important reminder of why New York enacted comprehensive discovery reforms in 2019. Our old laws kept people in the dark about the evidence against them and resulted in wrongful convictions, pretrial delays, and unfairness. The new discovery laws have had a positive impact on the lives of New Yorkers around the state. Defense attorneys are able to provide meaningful advice to their clients, conduct informed investigations, file more specific and informed motions, and engage in meaningful negotiations. Current proposals couched as ‘tweaks’ to CPL article 245 will undermine the fundamental principles of discovery reform and will impede the strides made towards greater transparency and fairness in our criminal legal system. New York has taken the blindfold off and this report makes clear that we must never put it back on,” said Susan Bryant, Executive Director, New York State Defenders Association.

 

“For years, New Yorkers faced a system wherein the evidence against them largely remained in the hands of prosecutors until the time of trial, when it was too late to prepare a defense and the time for plea bargaining had passed. Discovery reform righted this inequity and brought balance to the system. The Report on the Impact of Discovery Implementation demonstrates the extent to which the representation of accused New Yorkers has transformed in just a short period of time.  This came about because of the measured, thoughtful work of the New York Legislature in enacting these long overdue reforms. To now hastily upend them during the budget process under the guide of “minor adjustments” is untenable; it will reverse improvements that prevent wrongful convictions and promote fairness and confidence in the judicial system,” said Leanne Lapp, President, Chief Defenders Association of New York.

 

“The newly released ‘Report on the Impact of Discovery Implementation’ gives voice to the defense, often ignored by policymakers, about the benefits of early and complete discovery in criminal cases.  By leveling the playing field, these reforms have mandated transparency and will guard against wrongful convictions.  These reforms brought New York up to par with the rest of the country. These reforms have been landmark in their effect and amending them to any degree whatsoever would be a substantial miscarriage of justice,” said Kevin M. Stadelmaier, Esq, Aid to Indigent Prisoner’s Society/Erie County Assigned Counsel Program 1^st Deputy Defender-Criminal Division and Legislative Committee Chair, New York State Association of Criminal Defense Lawyers.

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. 

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).

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

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)

    

    

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

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

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

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.