Gotham Gazette https://www.gothamgazette.com/component/tags/tag/1501 Thu, 09 Apr 2020 11:32:15 +0000 Joomla! - Open Source Content Management en-gb webmaster@gothamgazette.com (Webmaster) Max & Murphy Podcast: Debating Major Criminal Justice Reforms Taking Effect in January https://www.gothamgazette.com/state/8957-max-murphy-podcast-debating-major-criminal-justice-reforms-bail-discovery https://www.gothamgazette.com/state/8957-max-murphy-podcast-debating-major-criminal-justice-reforms-bail-discovery nycpba wbai 600

SI DA McMahon at a press conference (photo: @NYCPBA)


November 27, 2019 - Max & Murphy Podcast: Debating Major Criminal Justice Reforms Set to Take Effect in January

da mcmahon marie nidaye 150Staten Island District Attorney Michael McMahon and Marie Ndiaye of Legal Aid Society joined the show to discuss their respective concerns about and support for major criminal justice reforms passed earlier this year in Albany an set to take effect in January, especially bail reform and discovery reform.

Listen to the conversation and let us know what you think -- we're on Twitter @TweetBenMax and @JarrettMurphy. You can listen to the show through the embedded audio below or download the episode wherever you get your podcasts, under "Max & Murphy," and listen to Max & Murphy live on Wednesdays at 5 p.m. on WBAI radio, 99.5FM or wbai.org.

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by Ben Max, Gotham Gazette
     

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Max & Murphy Podcast: Debating Major Criminal Justice Reforms Taking Effect in January Fri, 29 Nov 2019 05:00:00 +0000
Max & Murphy Podcast: The Push for Criminal Justice Reform, with Tina Luongo of Legal Aid Society https://www.gothamgazette.com/state/8355-max-murphy-podcast-criminal-justice-reform-with-tina-luongo-of-legal-aid-society https://www.gothamgazette.com/state/8355-max-murphy-podcast-criminal-justice-reform-with-tina-luongo-of-legal-aid-society mxm logo

Ben Max, left, of Gotham Gazette, and Jarrett Murphy, right, of City Limits


March 13, 2019 - Max & Murphy Podcast: The Push for Criminal Justice Reform, with Tina Luongo of Legal Aid Society

tina luongo 150With major criminal justice reforms being debated and negotiated in Albany, Tina Luongo of the Legal Aid Society joined the show to discuss the details of bail, speedy trial, and discovery reform that public defenders and other advocates want to see from state government.

Listen to the conversation and let us know what you think -- we're on Twitter @TweetBenMax and @JarrettMurphy. You can listen to the show through the embedded audio below or download the episode wherever you get your podcasts, under "Max & Murphy," and listen to Max & Murphy live on Wednesdays at 5 p.m. on WBAI radio, 99.5FM or wbai.org

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by Ben Max, Gotham Gazette
     

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Max & Murphy Podcast: The Push for Criminal Justice Reform, with Tina Luongo of Legal Aid Society Wed, 13 Mar 2019 04:00:00 +0000
Charter Revision Commission Hears Expert Testimony on Police Accountability https://www.gothamgazette.com/city/8344-charter-revision-commission-hears-expert-testimony-on-police-accountability https://www.gothamgazette.com/city/8344-charter-revision-commission-hears-expert-testimony-on-police-accountability pol acc

(photo: @Charter2019NYC)


The 2019 Charter Revision Commission met on Thursday evening to discuss police accountability reforms before an impassioned crowd filled with activists. Local advocates along with some politicians have long called for increased transparency and accountability in policing, particularly in recent years following the 2014 death of Eric Garner at the hands of NYPD officers on Staten Island and the slow, somewhat secretive process by which any accountability has been handled for that incident and others like it over the years.

The commission heard testimony from experts from representatives of the Civilian Complaints and Review Board (CCRB), NYPD, Legal Aid Society, and a variety of police reform advocacy groups.

It was the second charter revision commission hearing this year featuring “expert” panels on key areas that the commission is considering for reform recommendations. The commission, which has narrowed its focus areas to four big buckets, will make its recommendations this summer and its proposals for changes to the city’s charter, its foundational governing document, will go before voters in November.

The four focus areas are elections, which the commission met to discuss the week prior, governance, finance, and land use. Thursday’s meeting was the first to discuss governance, which includes police accountability.

The hearing occurred one day after the Legal Aid Society released a database of more than 2,300 cases of police misconduct involving almost 3,900 police officers between 2015 and 2018 (police unions say the database contains false and trivial allegations).

The CCRB is currently the primary mode of formal police accountability in New York City. The civilian board, members of which are appointed by various officials and groups, investigates citizen complaints of police misconduct in four arenas: force, abuse of authority, discourtesy, and offensive language. The board then recommends a certain level of discipline to the police commissioner, who holds the ultimate authority to determine and enforce penalties for misconduct.

The CCRB is a 13-member body: the City Council appoints one member per borough, the police commissioner names three members with experience in law enforcement, and the mayor installs five members and names the chair.

The hearing was divided into three panels, though unlike the election reform hearing, which was split thematically, the police accountability panelists discussed similar issues and recommended similar amendments to the charter to address the topic at hand.

The first panel included representatives from Citizens Union, a government reform group focused on transparency and accountability, Communities United for Police Reform, an activist organization, NYC Campaign for an Elected Civilian Review Board, and the New York Civil Liberties Union.

The second panel hosted a criminal justice professor from Borough of Manhattan Community College, an attorney from the Legal Aid Society, president of the Boston-based National Association for Civilian Oversight of Law Enforcement, and the Independent Monitor of the Denver Police Department.

And to conclude the hearing, the third panel was composed of the executive director of the CCRB, the NYPD legislative affairs director, and an NYPD Deputy Commissioner.

All panelists and commissioners broadly agreed on the importance not only of accountability and transparency in the NYPD, but also on the maintenance of public perception of these tenets. Ideas on how to achieve those goals––or thoughts on whether New York City has already achieved them––differed.

With exception from the two NYPD representatives, a consensus emerged among most panelists around amending the charter to increase the CCRB’s legal strength and to compel the NYPD to release public rationale when the commissioner’s disciplinary decisions divert from the CCRB recommendation. Many experts also advocated increasing CCRB’s budget in tandem with that of the NYPD.

Police commissioners typically deviate from the CCRB’s discipline recommendations: according to the 2019 Charter Revision Commission, the police commissioner implemented the board’s recommendations in 26 percent of cases in the first half of 2018 and in 37 percent of cases in the first half of 2017. Deputy Commissioner Kevin Robinson of the NYPD, however, asserted that the concurrency rate––or the rate at which the NYPD acts upon the CCRB’s recommendation––has risen since this dip. The board agreed that the NYPD will often enforce some discipline at the CCRB’s recommendation, but it rarely aligns with the actual suggested measure of discipline.

Executive director of the CCRB Jonathan Darche proposed four amendments to the charter: codification of CCRB’s administrative prosecution unit, allocation of subpoena power to the board’s “highest ranking staff,” a stronger impetus for NYPD compliance with the CCRB’s requests for information and documents, and to raise the CCRB budget to one percent of the NYPD budget.

“While the department will continue to encourage a healthy working relationship that goes beyond the strict bounds of the charter,” said Oleg Chernyavsky, executive director of the NYPD legislative affairs unit, “we do not support such an expansion of the CCRB’s authority.” Darche encouraged the commission to consider the urgency of collecting evidence for misconduct investigations that rely on city resources like street cameras, where footage is routinely taped over.

The NYPD commended its own steps toward increased transparency. Chernyavsky said that last year Police Commissioner James O’Neill gathered an external panel of criminal justice experts to assess the department’s internal discipline process, ultimately finding “no evidence of a lack of fairness.” The department still decided to act on a number of reforms suggested by the panel, like deliberation over the adoption of a standardized disciplinary matrix, according to Chernyavsky.

Some experts suggested amendments to bolster CCRB’s oversight power. Joo-Hyun Kang, director of Communities United for Police Reform, proposed allocating disciplinary enforcement capacity to CCRB, including potential prosecutorial power. She also advocated fully publicizing all of the NYPD budget, enabling oversight of issues like surveillance technology procurement. Michael Sisitzky, lead policy counsel of the New York Civil Liberties Union, supported many similar provisions, including a charter amendment requiring City Council oversight of technology acquisition and decentralizing the disciplinary power of the police commissioner.

“The biggest problem has always been in CCRB’s lack of authority,” said Sisitzky.

Charter Commission Chair Gail Benjamin, former director of the City Council land use division and appointed as chair by Council Speaker Corey Johnson, along with Commissioner Alison Hirsh, vice president of 32BJ SEIU and appointed by Comptroller Scott Stringer, inquired about the disciplinary procedure for “peace officers.” The experts generally agreed that the city lacks an adequate oversight system for these 5,000 officers, but Darche said that the CCRB lacks the resources to oversee peace officers.

The hearing’s most polarizing issue came from Pamela Monroe of the Campaign for an Elected Civilian Review Board. Monroe asserted that the “CCRB has failed,” and instead proposed a board of 21 elected officials “responsible to their district and answerable to New Yorkers.” The members would serve four-year terms that coincide with mayoral and City Council elections, she explained. The campaign has not yet determined if candidates should run along party lines or in nonpartisan elections. Monroe’s testimony drew fervent applause from the audience, which was largely composed of the campaign’s supporters.

Commissioner Rev. Clinton Miller, who was appointed by Speaker Johnson, asked for details, and Hirsh and several other commissioners inquired about the necessity for elected officials on the CCRB and expressed concern over how the NYPD’s political power could sway these elections in the department’s favor and potentially prevent new accountability reforms. “New Yorkers deserve to have the people represent them,” Monroe answered. Local elections are a tenet of democracy, she explained, and espoused her campaign’s belief that the current CCRB is reflective only of the politicians who appoint them, rather than the city at large.

While Brian Corr of the National Association for Civilian Oversight of Law Enforcement, reinforced Hirsh’s concerns over how police unions may wield their political clout in an election, most other experts declined to take a position on the issue as members of their organizations were still deliberating the idea.

Commissioner Sal Albanese, a former City Council member and appointed by Brooklyn Borough President Eric Adams, challenged many of the suggested reforms throughout the hearing. Albanese celebrated CCRB’s progress from when NYPD officers served on the board, which changed to its current all-civilian structure 26 years ago under the David Dinkins mayoral administration. He also extolled more recent reforms, including the installations of an inspector general and a federal monitor within the NYPD roughly five years ago.

“Are these things not working?” Albanese asked, to laughs from both the audience and the panel.

Corr later told Albanese that large cities need a body independent of the police department with checks on its power from the mayor and City Council, empaneled with “people who are trained in civic oversight, who understand investigations and can also look at systemic issues.”

Commissioner Stephen Fiala, the Richmond county clerk and appointed by Staten Island Borough President James Oddo, asked several experts to detail their complaints with the 2012 Memorandum of Understanding that broadened oversight of the NYPD.

Many experts lamented the lack of any measure compelling the NYPD to provide a public rationale in instances of non-concurrency between the department and the CCRB on disciplinary measures, despite provisions in the 2012 MOU that suggested the NYPD would disclose these explanations. Ethan Geringer-Sameth explained that Citizens Union has had to wield legal action to unveil certain NYPD decisions. “The fact that it’s not public now,” Kang said “really shows how the NYPD has been allowed to make their own rules.”

Commissioner Carl Weisbrod, a Mayor Bill de Blasio appointee, asked the CCRB and NYPD representatives why the MOU “shouldn’t be codified, given the fact that it has stood the test of time.” Darche called the memorandum a “template for charter revision,” while Chernyavsky said that the MOU maintained police commissioner power because those who occupy that position worked through all levels of the police ranks, giving them important perspective on issues of police misconduct.

Issues of police mistrust within communities of color were debated during the second panel. Albanese asserted that polling shows people of color generally trust police officers, while Manhattan Community College professor Liza Chowdhury said she had not heard of these polls and spoke of historical over-policing in neighborhoods of color, drawing enthusiasm from demonstrators in the crowd who carried photographs of African-American men who have been killed by NYPD officers. Fiala, meanwhile, agreed the NYPD must improve its relationship with civilians, but blamed a lack of trust on a general trend toward suspicion of institutions.

Cynthia Conti-Cook of the Legal Aid Society recommended implementing a conflict counselor position within the CCRB to serve as independent legal representation for clients, rather than the standard set by New York City Law Department’s interpretation of state Civil Rights Law 50-a, which she deemed “the crux of the problem.” The state law, she explained, requires attorneys advancing complaints against police misconduct to delineate why they believe misconduct exists, but blocks their access to disciplinary documents from the NYPD. Defense attorneys, Conti-Cook said, are “arguing in the darkness.”

Chernyavsky advocated for amendments to 50-a that would permit the release of information in the public interest––including officer names, trial transcripts, decisions and disciplinary outcomes––while maintaining safeguards “aimed at protecting officers against harassment.”

“Commissioner O’Neill,” Chernyavsky said, “has attempted to be more transparent within the bounds of the existing law,” noting the decision to release body camera footage and CompStat data. “We can have both. We don’t need to throw away the safeguard that are afforded to our officers at the cost of transparency.”

Many experts and commissioners shared a desire to see a police force that demographically better reflects the communities it serves (which has been the trend in the NYPD), and the need to confront trauma both in neighborhoods that have experienced police brutality and within the police force.

Representatives from the NYPD did not propose any charter amendments.

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Charter Revision Commission Hears Expert Testimony on Police Accountability Sun, 10 Mar 2019 05:00:00 +0000
Bill to Create Prosecutorial Misconduct Commission Awaits Cuomo Decision https://www.gothamgazette.com/state/7783-bill-to-create-prosecutorial-misconduct-commission-awaits-cuomo-decision https://www.gothamgazette.com/state/7783-bill-to-create-prosecutorial-misconduct-commission-awaits-cuomo-decision gov andrew cuomo electoral college

Gov. Cuomo (photo: Kevin P. Coughlin/Governor's Office)


Behind the veil of an unproductive state legislative session where, in its aftermath, the focus has been on what did not get done, one significant piece of legislation that made its way through both chambers and toward the governor’s desk is a bill to create a new, independent state commission tasked with investigating prosecutorial misconduct by district attorneys, including misconduct that could lead, and has led, to false convictions. If the controversial bill is signed into law by Governor Andrew Cuomo, a Democrat running for a third term this year, the commission would be the first of its kind in the nation.

The legislation passed the Republican-led state Senate 45 to 12 and the Democrat-dominated Assembly 98-46, with members of both parties on either side of the bill. The bill has been lauded by public defenders and criminal justice reform advocates, but has been excoriated by prosecutors, an association of which is calling it unconstitutional and threatening a lawsuit.

The commission would consist of three appointees from the state’s Chief Judge, currently Janet DiFiore, two by the Governor, two each by the Assembly Speaker, currently Carl Heastie, and the Senate Majority Leader, currently John Flanagan, and one each from the Assembly Minority Leader, currently Brian Kolb, and the Senate Minority Leader, currently Andrea Stewart-Cousins. According to the bill, the Governor’s appointees would have to consist of one public defender and one prosecutor, while the Chief Judge’s appointees must consist of one appellate judge and two judges from other jurisdictions. The rest of the appointees must be split evenly between prosecutors and defense attorneys.

The commission, which would oversee the state’s 62 district attorneys and their subordinates, would be given full subpoena power for prosecutors and witnesses, be able to request relevant documents, and would be able to conduct investigative hearings against prosecutors accused of misconduct. If wrongdoing is demonstrated, the commission can take several actions, such as a censure or even recommending that the prosecutor be removed from their post. The commission’s findings and recommendations would be compiled into an annual report to the Governor, Legislature, and Chief Judge.

False convictions, and subsequent exonerations, have become so commonplace in New York’s criminal justice system that some district attorney offices, such as that in Brooklyn, have set up whole units dedicated entirely to reviewing past convictions. As of December 2017, the Brooklyn DA’s Conviction Review Unit had requested exonerations for 24 wrongfully-convicted defendants.

“It’s a significant problem,” said Bill Gibney, director of the Legal Aid Society’s Criminal Practice Special Litigation Unit. “The last time I looked, I think New York State was up in the top tier of numbers of wrongful convictions that have occurred. And with some regularity, prosecutorial misconduct is in the mix.” It is impossible to fully account for all wrongful convictions. However, the University of Michigan’s National Registry of Exonerations placed New York at number four in the country for exonerations in 2017.

The Registry recorded 13 exonerations in New York in 2017, for offenses including fraud, weapons possession or sale, sexual assault, and murder or attempted murder. Eleven of the 13 recorded exonerations involved “official misconduct” by individuals in positions of authority such as police officers or prosecutors.

One of them, Johnny Hincapie, served for 26 years before being exonerated for a 1991 subway killing. Several key witnesses had not been asked to provide testimony in the original case; when allowed to testify in 2015, they stated that Hincapie was not involved. Hincapie further claimed that he was coerced into a confession by a physically abusive detective.

The Registry has, as of June, counted 12 exonerations in New York State in 2018.

A 1963 U.S. Supreme Court ruling, Brady v. Maryland, established that prosecutors must turn over all potentially exculpatory evidence to the defense. And last year, New York’s court system became the first in the country to require that prosecutors turn over all potentially exculpatory evidence to defendants, before trial. Nevertheless, New York’s discovery laws are poorly regarded by advocates and politicians alike; despite the precedents and rules, no timetables for turning over evidence or penalties for failing to do so exist. Discovery reform has repeatedly failed to advance in Albany despite widespread support.

“There have been so many major cases, murder cases, of people staying in jail for years and years and years, and with the availability of DNA evidence now, there’s been a lot of exonerations,” said Senator John DeFrancisco, a retiring Republican who was the bill’s primary sponsor in the Senate, in an interview on WQXR’s The Capitol Pressroom.

“And what happens is, people get exonerated, and in the course of that, when they show by DNA it’s not them, further investigation shows that evidence was withheld by prosecutors that should’ve been turned over by the law,” DeFrancisco told host Susan Arbetter. He noted that taxpayers end up on the hook for an unnecessary jail sentence and remuneration fees, while prosecutors get off scot-free.

“We’ve had the same thing for judges since the ‘70s,” he continued, referring to the state’s Commission on Judicial Conduct, established through two constitutional amendments in 1976 and 1978, which serves to investigate, reprimand, and/or discipline judges accused of misconduct. In an interview with Gotham Gazette, DeFrancisco noted that judges were “apoplectic” when the commission began, but it has been highly successful.

“After several years, after complaints were brought and it was shown how fair the commission was, right now it's second nature,” he said. “It’s changed the conduct of judges.”

Nevertheless, district attorneys are strongly against the proposed commission. “This legislation is a mistake and quite likely unconstitutional, and I urge the Governor to veto it,” Staten Island District Attorney Michael McMahon, a Democrat, told Gotham Gazette in an emailed statement. “As oversight already exists to address prosecutorial conduct, any attempt by the Legislature to impose additional measures will only tie the hands of prosecutors, and potentially threaten the safety of those we are sworn to protect.”

These existing oversight measures include “grievance committees,” subdivided by appellate division but sometimes with multiple committees per division. These committees investigate claims of misconduct by both prosecutors and defense attorneys, and can lead to censure or professional misconduct charges leveled against attorneys.

But the bill’s advocates say that the grievance committees are not enough. DeFrancisco and Legal Aid both told Gotham Gazette that the committees rarely, if ever, disciplined prosecutors. Legal Aid cited a study, from the Center for Prosecutor Integrity, a criminal justice reform think tank, which found that less than 2 percent of prosecutorial misconduct cases nationwide resulted in punishment. The same study noted 151 cases of misconduct in New York State, found by trial and appellate courts, with only 3 of those cases resulting in sanctions.

DeFrancisco, who has sponsored the bill for several sessions, said that he waited years for the state’s prosecutor association, District Attorneys Association of the State of New York, to provide him evidence of the grievance committees effectively policing prosecutors, but it failed to do so.

The Queens District Attorney’s office directed Gotham Gazette to a letter sent from DA Richard Brown to the New York Law Journal on June 22, in which he stated that both the New York State Commission on Statewide Attorney Discipline, chaired by former Chief Judge Jonathan Lippman, and the New York State Justice Task Force found that allegations of “rampant prosecutorial misconduct” were unfounded.

“Despite each of these findings, the legislature has elected to pass legislation that subjects prosecutors, alone among those who practice law, to a duplicative and intrusive process that is not only violative of the state constitution, but will surely cause delay to the progress of ongoing investigations and prosecutions, much to the detriment of all New Yorkers,” Brown wrote. He is also urging Cuomo, a former assistant district attorney in Manhattan and former attorney general, to veto the bill.

The district attorneys for the Bronx, Brooklyn, and Manhattan did not return requests for comment.

In a separate appearance on Capitol Pressroom, David Soares, the president-elect of the District Attorneys Association of the State of New York, raised both constitutional and content-based critiques of the legislation.

On constitutionality, the legislation allegedly circumvents a section of the state’s governing document allowing only the Governor, not the Legislature nor an independent commission, to remove district attorneys from office. He noted that the Commission on Judicial Conduct was established through constitutional amendments, not regular legislation -- such amendments must be passed by consecutive sessions of the Legislature, then the voters by popular referendum.

Soares also criticized the legislation as not requiring complainants to provide a sworn affidavit, “under the penalty of perjury,” and that most instances of “misconduct” were actually not intentional.

He added that if the legislation were to be signed by the governor, then DAASNY would sue the state to block its implementation. The governor’s office, in a statement to Gotham Gazette, did not address the potential lawsuit nor signal an intent to sign the bill or not.

“We believe there should be accountability for all officers of the court, and we will absolutely be reviewing this bill,” said Cuomo spokesperson Tyrone Stevens.

DeFrancisco told Gotham Gazette that he believes the governor will sign the bill. “I think he will sign it. The governor, I think, understands this history here.”

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by Ben Brachfeld, Gotham Gazette

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Bill to Create Prosecutorial Misconduct Commission Awaits Cuomo Decision Mon, 02 Jul 2018 04:00:00 +0000
For Local Defenders and Their Clients, This Year Is Different https://www.gothamgazette.com/130-opinion/6809-for-local-defenders-and-their-clients-this-year-is-different https://www.gothamgazette.com/130-opinion/6809-for-local-defenders-and-their-clients-this-year-is-different seymour james legal aid

Seymour W. James Jr., the author


It's budget season at City Hall. Since early March and for the next few weeks, the City Council will hold a gamut of hearings reviewing the financial needs of each city agency for the upcoming fiscal year. Press conferences are held, commissioners are grilled, and community based organizations try to make the case to Council members for more funding to serve their constituents.

The Legal Aid Society testified last Tuesday before the Committee on Courts and Legal Services, and we too urged for increased dollars to handle growing demand for the services we provide.

But this time it's different. It's different because our clients and other low-income New Yorkers are dealing with a growing number of unprecedented external threats like no other time in recent memory. Immigrants, LGBTQ, and black and brown communities have all felt this change in the wind. If New York is truly going to be a sanctuary, truly going to be a place of gender inclusivity and acceptance, and truly going defend the ground we've made reforming the criminal justice system and protecting civil rights, we need a budget that reflects these priorities and reflects these values.

By now, there’s no hiding President Trump’s prejudice against immigrants. His slapdash executive orders and homeland security memorandums - building on the vitriolic diatribes from his campaign – have made this crystal clear. What we’ve seen from the White House over the last 60 days is just the beginning and New York City needs to fortify local organizations working in the trenches to protect immigrant and other vulnerable families.

One way the city can step up is to baseline funding guaranteeing legal representation for those in deportation proceedings – a right unfortunately not provided by the constitution. The New York City Council, under the leadership of Speaker Melissa Mark-Viverito, has increased funding tremendously to support this exact effort through the New York Immigrant Family Unity Project (NYIFUP). The results are staggering, and NYIFUP has kept many local families together. Mayor de Blasio must work with the Council to ensure NYIFUP’s network of direct providers has the tools to fight today, tomorrow, and well into the future.

Another specific concern relating to immigration that needs funding priority is legal protection for unaccompanied minors. Violence is the leading factor forcing unaccompanied children from Central America to the United States. No law or program shields these minors from being sent back to their home countries – almost every child who arrives in the United States is put into deportation proceedings. The City Council’s Unaccompanied Minors and Adults with Children initiatives provide legal representation, but the current funding allocation doesn’t meet the need. Given Trump’s crusade against all undocumented, only a significant enhancement of this initiative will close the service gap for children newly coming before New York immigration court.

Last, but equally important, is Legal Aid’s continued work on Rikers Island and in other correctional facilities through our Prisoners’ Rights Project (PRP). For nearly 40 years, PRP has worked through litigation, advocacy, and monitoring to change policies and practices which have created unjust and abusive treatment of locally incarcerated men and women.

The Council understands this plight and created an initiative to exclusively support PRP's work in the city’s jails, but the conditions in state prisons are also deplorable and raising PRP’s Council allotment to $1 million will broaden our capacity to represent New York City residents imprisoned in the state system.

So in the spirit of Gideon vs Wainwright, a precedent-setting court case that turns 54 this week, and one that guaranteed representation to defendants in criminal court, the city must step up in these tough times. We are mindful of the financial challenges posed by the Trump administration but these programs should be strengthened; low-income New Yorkers need counsel now more than ever.

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Seymour W. James Jr. is Attorney-In-Chief of The Legal Aid Society. On Twitter @LegalAidNYC.

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Have an op-ed idea or submission for Gotham Gazette? Email opinion@gothamgazette.com

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For Local Defenders and Their Clients, This Year Is Different Wed, 15 Mar 2017 04:00:00 +0000
Language in Rushed Rent Regulations May Hold Tenant-Friendly Surprise https://www.gothamgazette.com/government/5808-language-in-rushed-rent-regulations-may-hold-tenant-friendly-surprise-cuomo-albany https://www.gothamgazette.com/government/5808-language-in-rushed-rent-regulations-may-hold-tenant-friendly-surprise-cuomo-albany Cuomo Heastie rent

Cuomo and Heastie in cahoots? (photo: Governor's Office via flickr) 


Tenant advocates disappointed by the rent laws deal reached by Gov. Andrew Cuomo and the Legislature at the end of session suddenly have a spark of hope, weeks after the backroom negotiations came to an end. Some are interpreting the wording of the new law to actually make it more difficult for landlords to deregulate apartments when rent reaches the established threshold, much to the chagrin of those property owners.

Tenant advocates say the new language of the bill - which regulates about a million affordable apartments in New York City - mandates that landlords have rented an apartment under the $2,700 per month threshold before they can remove it from the rent control rolls. This is as opposed to being able to deregulate the unit once an allowable hike hits $2,700 per month even if the unit is between tenants. Advocates believe this will significantly extend the time under which apartments are rent controlled even if it does not stop their eventual expiration.

Judith Goldiner, an attorney at the Legal Aid Society, said that since 1997, the language in the statute has been, "for any housing accommodation which is or becomes vacant on or after the effective date of the [1997 law] and before the effective date of the [2011 law] with a legal regulated rent of $2,000 or more a month."

The threshold was raised to $2,500 when the rent laws were renewed in 2011.

Goldiner said the language in the 2015 act can be captured as: "any housing accommodation that becomes vacant on or after the effective date of the rent act of 2015 where such legal regulated rent was $2,700 or more." They key being that the monthly rent was already $2,700 before an apartment is vacated, meaning that the rent threshold cannot be reached between tenants due to allowable vacancy and renovation bumps.

The Rent Stabilization Association (RSA), a landlord group, is aware of the language and believes it to be a drafting mistake that the Legislature could address along with a host of other drafting errors in the "Big Ugly" that was rushed to a vote on June 25 after session went into week-long overtime. But, it is unclear if the Legislature has any interest in returning to deal with the language. Sources in the Assembly say the language in question was inserted intentionally and they would not consider altering it.

Cuomo administration officials indicate they did not think the language was an issue. Tenant advocates wonder if Cuomo would dare alter the bill even if it was unintentional given that his allegiance to Democratic ideals has been under so much scrutiny of late. The governor recently felt backlash from the left after Senate Republicans touted a memorandum of understanding signed by his aide that appeared to agree to roll back a part of his signature gun-regulation SAFE Act. Not to mention attacks on Cuomo over elements seen as lacking (mayoral control of schools) or missing (minimum wage hike) from the final deal.

"Our interpretation is a tenant has to be in place under that threshold before they could move to deregulate," said Goldiner of the Legal-Aid Society. Goldiner said this specific measure was something she and her colleagues advocated for at great lengths. "I don't think this was unintended," Goldiner told Gotham Gazette. "We were in many, many meetings with the Assembly telling them how this would stem the tide of deregulation. And in a bill where tenants got very little, I think this is fairly appropriate."

Advocates still say that while the apartments would remain regulated, $2,700 per month is still a high rent and this tweak is not a game changer of any kind. Landlord groups are dismissing the language as a drafting mistake.

"I think the fact of the matter is when you read the section of the law on legal regulated rent it has not changed at all," said Frank Ricci of the RSA. "The bill in its entirety did so much on so many things that there are drafting inconsistencies throughout the bill. It is not pristine and clean as it has been in past years."

Lawyers for both sides are currently being consulted on the language and interested parties admit the debate could end up being settled in court.

The dispute over the language adds a twist to an especially heated year for the real estate industry and tenant advocates, including many New York City-based legislators.

Many lawmakers who represent parts of the city and advocates regard the changes made to the rent laws this year as minor tweaks that will only make it slightly more difficult for landlords to take apartments off the regulated rolls. The Legislature renewed the rent laws for four years and the law increases the threshold for vacancy deregulation and high-income deregulation from $2,500 to $2,700. Those thresholds will then be updated on January 1 of each year according to decisions by the city and suburban Rent Guidelines Boards. The amount landlords can increase monthly rent based on the improvements they make to apartments has also been reduced slightly and fines for tenant harassment have been increased.

Sen. Adriano Espaillat, a Manhattan Democrat, called the changes "one inch forward," and added: "We saw some tougher penalties but there were no major victories, we are still going to lose thousands of affordable apartments over the next four years."

Michael McKee of Tenants PAC agrees. He points to a study by Tom Waters of the Community Service Society that predicts the city alone stands to lose 87,500 rent regulated apartments given the $2,700 per month threshold.

Frank Ricci, of the Rent Stabilization Association, said that the new laws will make it much harder for landlords to afford maintenance and repairs. "These changes are going to make it much more difficult to maintain buildings. The Major Capital Improvements changes are going to disincentivize owners from making major improvements or doing major work like fixing the boiler."

Advocates point to reports from Waters and analysis from blogger John Krauss that show the city has consistently seen thousands of apartments leave the affordable housing rolls despite increases in the deregulation threshold made in 2011. http://blog.johnkrauss.com/where-is-decontrol/

"We've said for 22 years that raising the threshold is meaningless," said McKee. "It simply makes financial sense for landlords to spend the money [on repairs] to deregulate their apartments. The new laws do nothing to disincentivize them."

However, Espaillat and McKee say that tenants were particularly organized this year and effective in putting pressure on Cuomo and the Legislature. Advocates barraged the governor at his offices and continued their protests after the deal was passed - at one point targeting Cuomo's home in Westchester.

There may be no lull in the action as calls to strengthen the laws continue and the 2016 election year is just around the corner. On Wednesday, Brooklyn Borough President Eric Adams, a former state senator, will brief the media "about a new push to achieve some of the urgently needed protections not provided by the recently approved rent laws negotiated by Governor Andrew Cuomo and State Senate Republicans." Adams is also going to convene a meeting of state and local electeds and tenant advocates "to discuss plans moving forward."

Legislators and tenant advocates say they think the recent campaign could continue and be used as a tool to help Democrats win control of the state Senate at which point they could revisit the rent laws even before they expire. "We we were on point on organizing, on messaging, on building a coalition," Espaillat told Gotham Gazette. "If we win the majority next year we could very well address affordability." Democrats, who traditionally do better in presidential years, hope in part to ride a Hillary Clinton wave.

Ricci told Gotham Gazette that such action would create an unstable environment for landlords. "If you want a well-preserved housing stock in the city, you need consistency and predictability," said Ricci. "There is a lot of thought and planning that goes into improvements. If there is talk every year about tinkering it would create an unstable environment. In fact it would be shortsighted on the part of the Legislature to even talk about changes because it will stop people from making these large investments." 

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by David King, Albany editor, Gotham Gazette
@DavidHowardKing

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Language in Rushed Rent Regulations May Hold Tenant-Friendly Surprise Tue, 14 Jul 2015 21:50:09 +0000