Second Amendment Legal Update: November 2020

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.

If you have not already done so, get out and vote.

New York Statutes of Limitations to remain tolled under Governor Executive Order

All New York Statutes of Limitations remain tolled due to COVID until July 6 under the latest executive order:

The order tolls “any specific time limit for the commencement, filing, or service of any legal action, notice, motion, or other process or proceeding, as prescribed by the procedural laws of the state, including but not limited to the criminal procedure law, the Family Court act, the civil practice law and rules, the Court of Claims act, the Surrogate’s Court procedure act, and the uniform court acts, or by any other statute, local law, ordinance, order, rule, or regulation, or part thereof.”

New York enacts new adoption law allowing release of original birth certificates

From Syracuse.com:

For the first time since 1935 when the state sealed adoption records, adoptees will be able to obtain their original birth certificate when they turn 18 and find out the names

of their birth parents....

New York law prevented... adoptees to obtain their original birth certificates because the state sealed birth records to protect the privacy of mothers and fathers who gave up their children for adoption.

Supporters of the bill argued that times have changed, and that adoption no longer carries the stigma it did decades ago. It’s also easier to track down relatives through advances in genetic testing and online ancestry sites....

The law will go into effect Jan. 15, 2020. The legislation directs the state Department of Health to develop a process to handle adoptee requests for the records.

Cuomo's bail reform plan causes controversy

Officials and others weigh in on Governor Cuomo's bail reform plan

As part of his renewed push to reform the criminal justice system, Gov. Andrew Cuomo is proposing to eliminate cash bail for minor offenses.

Some on the law enforcement side said the proposal is not a well thought out plan, but others see it as a way to level the playing field for people accused of minor crimes.

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While not entirely against it, Defense Attorney Robert King of Robert King Law Firm admits the plan isn't foolproof. “There’s too many times that judges are setting too high of bail. There’s too many times where trials are postponed too long. I think the governor's heart is certainly in the right place,” said King. “The law is not black-and-white, so to say this is what you have to do all the time there’s going to be times where it’s inappropriate.”

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Gates Police Chief Jim VanBrederode said without bail suspects won't have a reason to come back to court and that could delay a case, and add to the backlog that already exists.

According to VanBrederode, there are nearly 830 outstanding warrants in Gates along and many date back a decade. “Justice delayed is justice denied, because behind every crime there is a victim. It's really not fair to the victim when the cases end up at a standstill,” he said. “It's going to create a problem with the criminal justice system; it's going to slow the system down even more and it's just going to create a bigger backlog in our opinion.”

In at least one other state, a similar bail plan backfired on the defendants:

Last year Maryland's courts approved changes to the state's bail system, instructing judges not to deny defendants the possibily of release if they were too poor to afford a cash bail demand. The intent was that defendants be jailed prior to trial only if they were flight risks or a danger to the community, not simply because they didn't have enough money.

Unfortunately, at least in Baltimore, the plan is backfiring. WBAL-TV, the local NBC affiliate, reports that the number of people detained in jail is rising, even as the number of arrests is dropping. Comparing March 2017 to March 2018, the station found that the average number of people jailed each day jumped 31 percent, from 655 to 856...

What's happening is easy to explain: Instead of making cash bail affordable, Baltimore's judges are choosing not to grant it at all in many cases where they previously would have.

The above article also touches upon the idea that eliminating cash bail for minor offenses could constitute an another "unfunded mandate," forcing counties to expand pretrial services and monitoring programs.

Statewide ban on e-cigarettes indoors in New York starts today

© 2017 Advance Media New York:

A statewide ban on using e-cigarettes indoors in New York takes effect today.

Gov. Andrew Cuomo signed a new law last month adding e-cigarettes to the state's Clean Indoor Air Act... Vaping is now banned in the workplace, on public transportation, indoors at all public and private colleges and in other areas.

It is also now banned in outdoor areas where smoking is also forbidden.

More on the new law here and here.

NYS Police Chiefs want ride-sharing services in upstate to help reduce drunk driving

New York Daily News:

The head of the state Association of Chiefs of Police is calling on Gov. Cuomo to expand ride-sharing services like Uber and Lyft to upstate to curb drunk driving.

In a letter to Cuomo, Cheektowaga Police Chief David Zack wrote that upstate accounts for 51% of all licensed drivers in New York, but 65% of alcohol- and drug-impaired arrests and 59% of all fatal and personal injury crashes.

The percentages are significantly lower in New York City, which offers an array of ridesharing and mass transit options that upstate does not, Zack wrote.

Conservative Party joins fight for New York indigent defense funding

New York Daily News:

It isn't often that the state Conservative Party is in agreement with liberal groups, but that is the case when it comes to urging Gov. Cuomo to sign a bill that would gradually shift the funding of legal services for the poor from the localities on to the state.

The Conservative Party... said that a requirement that the state's counties, including the five boroughs, fund legal defense programs for the poor amounts to an unfunded mandate that is choking the finances of the localities.....

The bill has won the support across the political spectrum....The New York Civil Liberties Union, the state Catholic Conference, NAACP, Lambda Legal Defense Fund, National Association of Criminal Defense Lawyers, Innocence Project and the Brennan Center for Justice have also urged Cuomo to sign the bill.

Catholic, Civil Rights, leaders urge Cuomo to sign indigent defense bill

New York Law Journal:

New York state's Roman Catholic church leaders and a coalition of civil rights and legal groups are urging Gov. Andrew Cuomo to approve state takeover of local government costs of legal representation for indigent criminal defendants.

"The Catholic Conference believes a well-resourced indigent legal defense program is firmly in keeping with our long-standing advocacy of criminal justice reform and must be supported," the executive director of the New York State Catholic Conference, Richard Barnes, said in a letter to the governor Nov. 23.

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In a separate letter earlier this month, national NAACP President Cornell William Brooks told Cuomo that the faults of "New York's underfunded patchwork system are well-documented."

Brooks was joined by leaders of the Brennan Center for Justice, the Fund for Modern Courts, the Innocence Project, the Lambda Legal Defense Fund, the National Association of Criminal Defense Lawyers and 16 other groups.

Governor urged to act on indigent defense bill

In an Op Ed published by Syracuse.com, New York State Bar Association president Claire P. Gutekunst urges Gov. Cuomo to sign the indigent criminal legal defense bill, noting that full funding is "consistent with a mandate imposed more than 50 years ago."

The bill passed by both houses would provide for state funding of public-defense services in all of New York's counties, phased in over seven years.

This would...(u)ltimately ensure that eligible defendants represented through the public-defense system receive the quality legal representation to which they are constitutionally entitled, regardless of where they were prosecuted.

For more on this bill, click here.

Report: Gov. Cuomo vetoes transparency laws

Glens Falls Post-Star:

Gov. Andrew Cuomo over the weekend vetoed two laws intended to strengthen the Freedom of Information Law process but issued an executive order to expedite the process of receiving government documents, but only for state agencies.

Blair Horner, legislative director of New York Public Interest Research Group, said it is odd that Cuomo vetoed the measures when Robert Freeman, executive director of the State Committee on Open Government, recommended both measures in the state agency’s annual report...

Public interest advocacy groups and newspaper editorial boards advocated for both measures...

The Freedom of Information Law guarantees public access to government documents and records, with certain specific exceptions.

One of the bills the governor vetoed would have required state agencies to pay legal fees and court costs when a court rules that documents have been withheld without a reasonable basis...

The other bill Cuomo vetoed reduced the time public agencies have to appeal a court decision on access to public records — from nine months to two months.

Cuomo on Saturday issued an executive order that requires state agencies to file notice of an appeal, settle the record on the appeal and file a legal brief within 60 days.