COLLATERAL CONSEQUENCES STEMMING FROM CRIMINAL JUSTICE SYSTEM CONTACTS

COLLATERAL CONSEQUENCES STEMMING FROM CRIMINAL JUSTICE SYSTEM CONTACTS Sergio Jimenez, Director, Civil Justice Practice Brooklyn Defender Services

INTRODUCTION • • Brooklyn Defender Services as one of the two criminal defender organizations in Brooklyn also provides a multi-disciplinary approach to client services. In other words, we meet our clients when they are having their worst days; going through either the criminal, family or immigration justice systems. As such, we are at the perfect bottleneck moment to be able to reach a vulnerable population and provide legal services to attempt to minimize the damage caused by contacts with those systems. The Civil Justice Practice at BDS tends to the needs of our clients in the areas of housing, consumer, education, employment and defense in other types of collateral consequence issues.

COLLATERAL CONSEQUENCES • • • Nationwide, there approximately 48, 000 laws that encapsulate collateral consequences *of convictions. * ABA General listing of collateral consequences – https: //niccc. csgjusticecenter. org You can search by jurisdiction and has links to the specific laws/regulations which cause the collateral consequences.

COLLATERAL CONSEQUENCES - NYS • Over 7 million people are reported to have criminal background information in the state of New York at the end of 2012, according to the Bureau of Justice Statistics. That number has only increased since then. That constitutes roughly about one-third of the population of the state. • In New York State there are 1, 314 different statutes and regulations leading to consequences ranging from: – an ineligibility to volunteer at a family day care home for any misdemeanor conviction to having your – alcoholic beverage control authority license suspended/denied/revoked for any felony, controlled substance offence or sex offense.

COLLATERAL CONSEQUENCES - NYS

COLLATERAL CONSEQUENCES - NYS

HOUSING Generally most of the consequences begin at the arrest stage. In private, both regulated and unregulated housing, property owners can bring: • Nuisance proceedings – Common law nuisance standard applied to criminal acts – – – • Bawdy House Cases – Action under RPAPL §§ 711(5) & 715 when – – – • Conduct must be recurring, frequent, continuous or extremely dangerous. One incident not enough unless more. Cases: • 160 West 11 th Street Corp v. Gray • Gazivoda v. Sherman • Broadway Portfolio I Owner LLC v. Bello “Customary & Habitual” Use of Premises for “Illegal Business, Trade, or Manufacture “With Knowledge / Acquiescence of TOR” DA office involvement – DA requires LL to file case. If LL refuses the DA, police, or neighbors have standing to file. DA cannot, however, veto a settlement LL agrees to with tenant. Breach-of-Lease Cases – – – “Crime-free lease rider” Project-based Sec. 8 (HUD Lease) Often strict-liability standard

HOUSING, CONT. - PUBLIC • Public Housing Authorities (PHA) administer most of the federally subsidized housing programs in NY, including public housing and most of the Section 8 voucher program. – – • • PHAs must publish standards for denying eligibility and terminating assistance based on criminal activity and substance abuse. In NYC, the PHA is the New York City Housing Authority (NYCHA). Department of Housing and Urban Development v. Rucker, 535 U. S. 125 (2002); 237 F. 3 d 1113, Reversed and Remanded - Allows (permissive) for lease agreements calling for termination of tenancy for any one incident of drugs by a public housing authority, even for a guest. Consent Decrees – NYCHA, however, has three consent decrees (both for public housing itself as well as their Section 8 program) that oversee their terminations: • Escalera, et al v. New York City Housing Authority, 425 F. 2 d 853, cert denied, 400 U. S. 853 (1970) • Joseph Tyson, Sr. v. New York City Housing Authority and Myrders Randolph v. New York City Housing Authority 73 C 859, 74 C 1856, 74 C 2556, 74 C 2617 (S. D. N. Y. 1976, Metzner, J. ) • Diedre Williams v. New York City Housing Authority, et al, 81 Civ. 1801 (RJW) (SDNY)

PROCESS AT NYCHA 1. NYCHA has a memorandum of understanding with the NYPD, that the NYPD will forward any arrests on or about NYCHA property to management. 2. Tenant, head of household, will get a letter from management stating that they want a sit-down talk to see whether or not they will forward this to NYCHA legal for a termination proceeding. 3. Behind the scenes an administrator at NYCHA will approve of management’s decision (in our experience, we have not heard of any being turned down) 4. File is referred to NYCHA legal, who assigns it to one of about a dozen attorneys who bring the tenant to a hearing. a) No right to counsel attaches, the new bill would not do that either. 5. This hearing is one where an “Impartial Hearing Officer” who is a NYCHA employee presides over the hearing. “Technical rules of evidence shall not be enforced. For example, double hearsay is admissible.

PROCESS AT NYCHA – No clean 5 th • • This is clearly a problem, since these cases are brought at the arrest stage and your client could potentially be testifying under oath about exactly the matter of the criminal proceeding. In these types of proceedings, refusal to testify gets a negative inference. As such, in a variety of cases the client is left with a choice of trying to save the housing and potentially inculpate themselves or give up housing out of fear of incarceration. This has been found to be a “difficult choice, ” but not an unconstitutional one. 54 West 16 th Street Apartment Corp v. Dawson, 179 Misc. 2 d 264, 684 N. Y. S. 2 d 400 (N. Y. City Civ. Ct. 1998) Tenants may be offered an opportunity to permanently exclude a member of their family in order to save the apartment. If this is done by settlement, then the ban includes no visitation; however, if done after a hearing, then the ban does allow for the person to visit, but not stay. If the person does return in a situation where the ban does not allow for visitation, the entire family can be evicted for a visit.

PROCESS AT NYCHA – Collaboration benefits • The other side of that is that in these hearings, police officers testify under oath about the arrests and the surrounding consequences and the District Attorney is not there, giving a collaborative attorney a chance to get a free cross on the police officer. • Also, NYCHA tends to have to tender discovery sooner (search warrant materials, lab reports, voucher documents).

• • • PROCESS AT NYCHA Applications There are only 2 mandatory exclusionary crimes (being on the lifetime sex offender registry and production of methamphetamines in public housing), the vast majority of please can lead to a discretionary bar to applying for public housing. While there is a list of crimes that NYCHA overlooks (such as fortune telling, failing to pay for a ski lift and trading of unlawful science secrets), any open cases (even an ACD) will pause or cause an application to be denied. The periods for ineligibility based off criminal convictions is below: Criminal Conviction Years After Serving Sentence (including completion of probation/parole and payment of fine) Felonies Class A, B, and C Class D and E Misdemeanors Class A 6 years 5 years 4 years (5 years if 3+ convictions for A m/d or felonies within last 10 years) Class B or unclassified 3 years (4 years if 3+ convictions for m/d or felonies within last 10 years) Violations or Infractions Violations or DWI 2 years (3 years if 3+ convictions for violations or above within last 10 years) Multiple Convictions Ineligible for longest applicable period.

PUBLIC NUISANCE • Public Nuisance Abatement Law is a case brought by the NYPD against the apartment (owner, occupants, anyone) under some provisions of the City Maintenance Code. Essentially, it is a lawsuit asking that a court order the closing of an apartment for a year, until the public nuisance is removed. Historically, public nuisances were illegal brothels and gambling dens. However, most now deal with alleged drug buys. LAW?

PUBLIC NUISANCE • Pro. Publica conducted an investigative report available at https: //www. propublica. org/article/nypdnuisance-abatement-evictions that found the inherent unfairness of these proceedings, which led to some small but important changes to the law being passed in the City Council on 2/14/2017. • Some of the tweaks to the law included changing the number of required alleged drug buys and removed some of the temporary restraining orders leading to tenants being closed out of their apartment, lab tests and personal knowledge of the alleged drug buy.

PUBLIC NUISANCE • However, some owners see this type of proceeding as a great thing, where they, being the only named party, would default, have the apartment closed, let the person leave and then quickly move to reopen the apartment, which is now empty and ready to be remodeled/re-rented to someone else. – So there is an impetus for owners to call police on your clients.

HOUSING - Miscellaneous • Orders of Protection are another kind of consequence that results in homelessness. – Forman hearings ask for a modification of the OOP • May not actually be hearings (Carrington/Meggie) • Standard is: “risk of danger or intimidation” to complaining witness • NOT asking criminal court to determine better housing rights, but rather just a due process analysis to a taking of property rights • Often no “expeditious” remedy in housing, family or Supreme court.

CIVIL FORFEITURE Civil forfeiture allows the NYPD to seek to keep property seized incident to arrest where that property was used in the commission of a crime even where the DA has declined to prosecute or where charges were dismissed. No conviction is necessary. This is different than criminal forfeiture, where the DA’s office can seek as part of the criminal proceeding settlement, to forfeit some property. CPLR 1311 governs the civil forfeiture action process at the state level. In NYC, however, the NYPD rely on the city administrative code. New York City Rules, Title 38 § 12 -01. Since the standard of evidence in this proceeding is lower than “beyond a reasonable doubt, ” any guilty plea or verdict is given preclusive effect. As a result any conviction for a crime involving a vehicle, for example, would be sufficient for a favorable civil forfeiture verdict.

CIVIL FORFEITURE – Retrieving Property Seized at Arrest The NYPD holds property seized at arrest. Retrieval depends on nature of arrest, type of property and how the property is vouchered. If property is needed as evidence in the criminal case it cannot be released until the DA authorizes it. • 1 st - Identify how property is vouchered. 1. 2. 3. Safekeeping Straight to the NYPD (precinct or property clerk 11 Front Street). Arrest Evidence Demand for DA release, demand at 11 Front Street for Property. Forfeiture Demand for DA release, for cars call civil enforcement unit, for cash go to 11 front street. *Missing voucher? Try to obtain one at the precinct with name, date of arrest, arrest #.

CIVIL FORFEITURE – DA Release at Criminal Court For property vouchered as evidence the DA must certify it is no longer needed in the criminal case by issuing a “DA Release”. This release only demonstrates the DA is done with the property. It has no bearing on NYPD’s ability to seek forfeiture. To get a DA Release: Defense attorney makes request/demand directly with ADA. In Brooklyn, a defendant can go to DA property window in criminal court and make a demand for a release. (Not the case in the Bronx; other borough mileage may vary).

CIVIL FORFEITURE – Demand for Property (NYPD) • Separate from the DA’s temporary retention owners must make a demand to the NYPD for return of their property. • For cash and personal property go to your borough property clerk and fill out a form. Obtain an • For vehicles call the NYPD Property Clerk Division's Erie Basin Auto Pound (718) 246 -2031 or (718) 246 -2032.

CIVIL FORFEITURE – Return of Property Demand Return • The formal demand for return triggers the NYPD obligation to file any forfeiture proceeding in supreme court within 25 days. • If no action is filed the owner will be notified to come pick up their property. NYPD Pursuing Forfeiture • NYPD Civil Enforcement Unit will notify client if the property or vehicle cannot be returned. • For vehicles they may offer a settlement of anywhere from $500 to $3000 allowing the owner to pay to get their property back. • The car cannot be returned, even through settlement, until the DA has authorized it. Whether to settle or fight • Settlement may be the fastest way to get a car back. Sadly most owners choose this route. • Where a conviction is likely in the criminal case settlement is the only way to ensure the car will not be forfeited in supreme court – given the preclusive affect of the guilty verdict/plea.

CIVIL FORFEITURE – Forfeiture of Vehicles Krimstock – Krimstock (Krimstock, et al v. Raymond Kelly and the City of New York, 99 Civ. 12041 HB) hearings can be considered bail hearings for cars. Car owners can request a hearing. The number of cars for 2015 taken was around 3, 000 and the number of contested Krimstock hearings (according to information acquired through a freedom of information request from the NYPD) that resulted in the car being returned was 5. Even, if this case is won, the NYPD can still seek forfeiture. Part of the settlement usually involves the NYPD giving up their right to seek forfeiture. This is used as part of their negotiation that ends in a cash settlement. To give scope, the NYPD (without state/federal counterparts) took in $5. 1 / 5. 3 / 5. 6 M over from 2013, 2014, 2015. Of note, cars that are not owned outright generally have clauses which allow the lease holder (normally the car salesperson, i. e. Honda of Oceanside) puts clauses in their contracts that allow them to seek possession of the car if they are impounded for illegal acts. We have seen car dealers bring these motions in Albany various times.

EMPLOYMENT Licensing/Regulatory agencies are automatically notified of new arrests, but not convictions. Every licensing/regulatory agency has their own scheme regarding the impact of an arrest and/or conviction on employment – so, in order to do an analysis one has to find the licensing/regulating body to assess the impact. i. e. Home Health Aides at Department of Health, Nurses can be Department of Health or NYSED Office of Professions, Security Guards are Department of State Licensing

EMPLOYMENT Article 23 -A of the Correction Law, New York State Law protecting people with criminal convictions from employment discrimination, only applies to convictions. There are no parallel protections for people with pending cases. So much like housing, pending cases may cause problems just due to the waiting period.

EMPLOYMENT Typically, private employers will not know about arrests – but will know about convictions when they run a background check. The Fair Chance Act (Int. 318 -2014/063 -2015) which went into effect at the end of 2015 now requires employers, with some exceptions, to refrain from asking about criminal convictions or running background checks until they make a formal conditional offer of employment. Then, if something appears on the background check, the law requires the employer give the employee at least several days to address it, through explanation or other documentation. • While the sealing statutes act as shield against clients facing consequences from favorably disposed of cases, there is an exception for law enforcement agencies. As such, clients applying for law enforcement positions should be aware sealed cases, and their underlying arrests, will be reviewed.

CONSUMER • • Different types of letters We have been seeing attorneys from out of state sending letters seeking to collect on debts stemming from shoplifting where the items did not leave the store. Our community should pool stories together in order to file a Fair Debt Collection Practices Act; as most of these are unenforceable and through our research we have not found any cases being filed in any court over these alleged dealings. Occasionally we have also seen letters claiming that there were nonprosecution agreements made in exchange for restitution costs ($15, 000 for some shoplifted jewelry); which are also troubling. Again, we have not seen any cases being filed in this regard, but the letters received by folks who have been arrested in theft cases would be useful in coming up with some sort of systemic relief.

AVAILABLE TOOLS Sealing • CPL 160. 50 – covers favorable dispositions (dismissals, acquittals) • CPL 160. 55 – covers non-criminal dispositions (240. 20 and the like); different from 160. 50 because it does not seal the court records, only the police, prosecutor, DCJS records of arrest (with some exceptions) • CPL 160. 60 – clears up some of the outstanding questions of sealing; for instance, the arrest shall be deemed a nullity. • Misdemeanors and felony convictions NEVER seal; so the difference between a violation and a conviction is pretty substantial in the civil realm.

CERTIFICATES Certificate of Relief from Civil Disabilities • Governed by Article 23 and 23 -A of the Correction Law. Sections 700 -706 and 750 • • 755 Available with a conviction of a crime, but not of more than one felony Available from any court that imposed the sentence upon the defendant; may be done at time of sentencing or thereafter, however, it is better to do it at time of sentencing because it grants relief from any forfeitures as well as disabilities. It can also be done through the State Board of Parole who is serving or has served time in a NYS correctional institution whose judgment of conviction was rendered by a court in any other jurisdiction but lives in NYS. CRDs serve as a presumption of rehabilitation for employers. Several licensing/regulatory schemes specifically note that a CRD will allow an applicant with an otherwise disqualifying conviction to apply for a job. Certificate of Good Conduct • Exclusively given by the State Parole Board and has different time frame dependent • • • on the conviction. This is for individuals convicted of more than one crime. The time frames are below: Misdemeanor – one year C, D, E Felony – three years A, B Felony – five years

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