Upstate NY, Long Island Courts Get OK To Restart Trials

By Cara Salvatore
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Law360 (July 9, 2020, 10:28 PM EDT) -- New York state court administrators have given the all-clear to resume some in-person trials in Albany, Westchester County and parts of Long Island, with the first set to be a Nassau County bench trial for murder beginning Monday.

The courts system announced Wednesday that courts in Albany, White Plains, Nassau County and Suffolk County could restart "a limited number of bench trials in civil matters" beginning Thursday and Friday. Those areas correspond to the third, ninth and 10th state court districts.

But in practice, the first trial won't be until Monday, in Nassau County, according to courts spokesperson Lucian Chalfen. Nassau County resident Faye Doomchin, who faces second-degree murder charges for stabbing a houseguest she had just met, will waive her right to a jury trial, according to her lawyer, Robert Gottlieb of Gottlieb & Janey LLP.

Doomchin, who has been in prison since August 2018, has a long history of severe mental illness and should have had a trial before now, but the county district attorney refused Gottlieb's entreaties for an online trial amid the COVID-19 pandemic, the attorney said.

"The judge and the DA will confirm that I made an all-out effort to convince everybody to try the case remotely, 100% by Skype," Gottlieb said Thursday. "My concern was Faye being in jail."

"When I say that I have been screaming and begging for a trial going back to March, I am not exaggerating," Gottlieb said. The matter was originally set for trial on Feb. 19 and has been pushed back nine times, court records show.

Chalfen said Friday that, under court administration orders, there "would have been no way that Nassau would have been able to hold any kind of a proceeding before the 26th" of June, including online proceedings.

In an email, Nassau County DA spokesman Brendan Brosh said, "Due to administrative orders from the Office of Court Administration, a trial in this matter was not possible after March 16. We cannot have trials when they are prohibited. Now that Nassau County has met the various public health benchmarks, we – and the court system – are ready for trial."

Brosh also said that, under current state law, his county is one of 35 in New York that are not allowed to utilize virtual appearances, and that his office has sought amendments to this statute "for years."

"We welcome the technological innovations that [have] been put in place since the pandemic and hope that the statute will be changed, and they remain in place when the public health emergency subsides," Brosh said.  

The lawyers, judge and court reporter will appear in person, Gottlieb said. Doomchin will be brought to court by prison personnel for at least the first day, when she must sign her jury trial waiver, a requirement that the judge wouldn't permit to be performed over Skype, Gottlieb said.

One witness will be allowed to appear remotely, a key expert on mental illness who lives in Wyoming, Gottlieb said. Other witnesses will appear in person, sitting in the jury gallery.

Doomchin's history is known to the county. In 1999, she committed a similar act, walking into a real estate office and stabbing a stranger. The person survived and the county DA "offered a disposition of not responsible," Gottlieb said, after which Doomchin went to stay at a psychiatric hospital. Her treatment continued for 13 years on an outpatient basis, Gottlieb said. He also defended Doomchin in that case.

Gottlieb says a similar result would be correct in this trial, which he expects to last roughly four days and to test courtroom distancing plans and procedures.

The judge will be protected by a Plexiglas barrier that's been installed around the dais. As for the lawyers, "we're told the state isn't providing the Plexiglas shields; we're told it's up to the individual to construct your own," Gottlieb said. He will bring a transparent face shield.

Lawyers in the county are watching court reopening developments closely, according to N. Scott Banks, head of the Nassau County Legal Aid Society, which is not involved in the Doomchin case.

"Attorneys from defense lawyers to attorneys in my office, even prosecutors, have legitimate concerns," Banks said. But he said the county's court administration has been open to concerns and has been "listening to all the stakeholders in that regard."

Bank is concerned, however, that the state may misguidedly try to apply distancing solutions from some areas to others where they won't work, or apply measures in a way that's punitive to people of lesser means.

"One of the things I heard they were doing in upstate courts were they would have the clients wait in their cars for the cases to be called," Banks said. "Well, the problem is, our clients take public transportation to court."

He is also worried about the potential that indigent clients might face legal consequences for not being able to afford personal protective equipment.

"They don't always have the right PPE," Banks said. "They can't be told they can't enter the courtroom" and then see a judge "warrant them or default their cases," he said.

Elsewhere, New York City's own Legal Aid Society is criticizing plans for some in-person proceedings within the five boroughs, saying that's not the right move.

The city's Legal Aid Society urged the state court administration Thursday to "abandon its proposal to recommence in-person appearances until health experts have developed plans for returning to court in a safe manner." The Bronx could start requiring in-person lawyer appearances in court as soon as Monday, the group said.

But as scientists converge on an increasingly strong consensus that most coronavirus transmission happens during lengthy in-person interactions indoors — which is exactly what a trial is — Gottlieb said he's acutely aware of the effects the situation could have on his advocacy as he goes to trial Monday.

"Listen, you have to be a fool not to be somewhat concerned," Gottlieb said. "It's going to be interesting whether or not I can actually wear a mask and still [lead a trial] — it's like the proverbial, 'Can you walk and chew gum at the same time?'"

--Editing by Haylee Pearl.

Update: This story has been updated with additional comment from representatives of the Nassau County courts and district attorney's office.

For a reprint of this article, please contact reprints@law360.com.

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