Second Amendment Legal Update, October 2022

A monthly update, prepared for the Schuyler County Chapter of S.C.O.P.E. NY, a statewide 501(c)4 organization dedicated to preserving the 2nd Amendment rights for the residents of New York State. For a complete PDF copy of this month's update click here.

Governor Hochul signs new criminal legal system laws

New York Governor Kathy Hochul has signed several bills relevant to the New York State criminal justice system. The new laws include:

• L. 2021, ch 501: Amends CPL 440.10 to “[p]ermit[] the court to grant post-conviction motions to vacate a judgment when the issue raised upon such motion is ineffective assistance of counsel in certain cases in which the court would otherwise be required to deny the motion.” [Effective 10/25/2021.]
• L 2021, ch 474: Adds Family Court Act 162-a to prohibit the use of restraints on children under 21 in family courts except in limited circumstances. [Effective 10/8/2021.]

• L 2021, ch 486: “Removes the prohibition on individuals convicted of a felony that prevents them from being appointed fiduciary of an estate ….” Previously anyone with a felony conviction was barred from serving as an executor/executrix of an estate; under the new law, a court will still have discretion to declare someone ineligible if the prior felony conviction relates to fraud or embezzlement. [Effective 10/22/2021.]
• L 2021, ch 487: The bill allows individuals under supervision to work night and overtime shifts without being violated for breaking curfew. [Effective 10/22/2021.]
• L 2021, ch 491: “Relates to certificates of relief from disabilities and certificates of good conduct upon discharge.” Individuals can now apply for a certificate at the time of supervisory discharge, instead of having to wait for three years. [Effective 1/20/2022.]
• L 2021, ch 492: “Relates to work related labor protests not being considered a parole violation.” Previously there were no protections for people on supervision to participate in work-related labor protests or lawful labor disputes, strikes, or work stoppages or slowdowns; this bill specifically allows them to do so without being violated. [Effective 10/25/2021.]
• L 2021, ch 494: “Relates to annual reporting on substance use disorder in incarcerated individuals; requires the office of addiction services and supports to monitor programs providing treatment to incarcerated individuals in correctional facilities and provide an annual report.” [Effective 10/23/2021.]

New York State Releases Caseload Standards for Family Court Public Defense lawyers

The New York State Officie of Indigent Legal Services (OILS) has released Caseload Standards for Parents’ Attorneys in New York State Family Court Mandated

Representation Cases. The standards are intended to cover public defenders, assigned counsel and other attorneys assigned to provide mandated representation for people who cannot afford their own lawyer in various types of family court cases.

The standards include both maximum annual case assignment limits and a minimum average number of hours attorneys should spend on each case.

Cases are broken down into thirteen case categories:

• paternity;
• willful violation of support;
• willful violation other;
• family offense;
• guardianship;
• violation of conditional surrender;
• adoption;
• modification of prior order;
• custody/visitation;
• conditional surrender;
• neglect;
• abuse; and
• TPRs (termination of parental rights).

Approval of the standards is contingent upon the availability of State funding to implement the standards. The full report can be found here.

New York State extends availability of Veterans Treatment Courts

New York State officials have enacted legislation extending access to Veterans Treatment Courts (VTC) throughout the state.

These courts connect justice-involved veterans to appropriate services in a court setting, surrounded by an interdisciplinary team. These include the judge, court staff, prosecutors, treatment/service providers, defense attorneys, probation, law enforcement, volunteer veteran peer mentors, and representatives from the U.S. Department of Veterans Services, all of whom work collaboratively to help veterans.

Studies have indicated that VTCs reduce recidivism and alcohol and drug use and promote positive life changes that allows veterans to re-enter their communities in a positive and meaningful way, often with assistance of VA therapies.

Prior to this legislation, there were only approximately 33 VTCs in 25 counties. Due to the lack of a VTC in over half of the counties of the state, about one-third of New York veterans lacked access to a VTC.

The new law authorizes the transfer of cases from jurisdictions without VTCs to adjacent counties with VTCs and requires the chief administrative judge to establish new VTCs, to the extent practicable.

New law gives New York Judges authority to waive surcharges and fees for people under 21

New York courts now have broad discretion to waive surcharges and fees where the judge finds that the person being sentenced was under the age of 21 at the time of the offense and that:

· the waiver is in the interests of justice;
· the imposition of the surcharge or fee would work an unreasonable hardship on the defendant, the defendant’s immediate family, or any other person dependent on the defendant for support; or
· after considering the goal of promoting successful and productive reentry and reintegration), the imposition of the surcharge or fee would adversely impact the defendant’s reintegration into society.

The new law was effective August 24, 2020 and the full text is available here.

New York State Bar Association calls for increased assigned counsel rates.

The House of Delegates of the New York State Bar Association has "approved a report and resolution calling for an increase in the rates paid to private attorneys providing mandated representation for those who cannot afford to pay counsel."

According to the resolution, assigned counsel fees under New York State County Law have not changed since 2004.

The NYSBA also called for any increase to be paid at state expense, to prevent an unfunded mandate to the counties.

New York’s new law: Police recording duty for certain custodial interrogations

Effective this month, the law in New York State on police recording of certain custodial interrogations has changed.

The new law amends the Criminal Procedure Law creates a recording obligation in certain highly serious felonies, including many Class A-1 offenses, A-2 sex offenses, and B violent homicide and sex offenses.

Under the statute, the recording has to begin with "custody" at a police station or other detention facility (or at same time police must give the person Miranda warnings).

There are ten "good cause" exceptions for non-recording listed in the law. They include malfunctioning equipment, booking questions and "inadvertent error or oversight.”

If police improperly fail to record an interrogation and cannot show "good cause," the statute permits the defense to obtain a jury charge at trial. However, there is no suppression remedy for police failure to comply with the recording obligation. Instead, the law provides that a failure to obey the recording rule can be a "factor" bearing on admissibility, though not the "sole factor."

For more on the new law, click here.

Combatting Human Trafficking

The Human Trafficking Prosecution Unit of the US Department of Justice, Civil Rights Division and the National Legal Aid and Defender Association are presenting a free webinar, Combatting Human Trafficking Through Collaboration, on Feb. 21, 2018 from 2:00-3:30 EST.

The webinar will address "types of legal services survivors of human trafficking need; how to identify when civil or criminal clients may be victims of trafficking; successful models for collaborating with law enforcement while maintaining a victim-centered approach; and opportunities for working with the Civil Rights Division to fight against human trafficking."

For more information or to register, click here.