Special court moves Queens defendants off Rikers, sometimes without seeing a judge
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Judge Bruna DiBiase presides in Queens Criminal Court’s special application part. Inset photo by Andy Katz; Photo by David Brand
By David Brand
For the first time, some Queens defendants locked up on Rikers Island can enter a plea with the stroke of a pen.
Queens’ new special application part allows defense attorneys to enter a client’s plea via a signed and notarized affidavit. The procedure means that the client does not have to appear before a judge — a major departure from the established order and another consequence of the criminal justice system’s coronavirus-fueled transition to remote appearances.
A total of 281 defendants had their cases heard remotely in Queens’ new special application part between March 17 and May 5. Ninety-four of them were incarcerated, including several who submitted guilty pleas on a signed piece of paper, according to statistics shared by presiding Judge Bruna DiBiase.
Many of the defendants remained behind bars even though Queens prosecutors sought a conviction that would not result in jail time, DiBiase said. She coordinates with the assistant district attorneys and defense lawyers to move those inmates out of jail as soon as possible.
“If we receive an emergency application that will result in someone’s release, that is heard the same day the request comes in,” she said. “The most important thing to do was to start getting people released.”
Affidavits have allowed people charged with low-level offenses to get out of jail without waiting for city jail staff and court personnel to set up a video conference. More than half of the incarcerated defendants who appeared or entered affidavits in the special part were released within 48 hours of their appearance, according to the data shared by DiBiase.
Many of the guilty plea affidavits are entered by defendants locked up on parole violations related to low-level offenses, she said. “Once they resolve the criminal matters, then they’re able to resolve parole matters,” she added.
New York’s Criminal Procedural Law allows for affidavits in lieu of appearances, according to Office of Court Administration spokesperson Lucian Chalfen. “They are only done because it is very difficult to coordinate a video appearance with” the Department of Correction, Chalfen said.
DiBiase said she has occasionally accepted pleas via affidavit from out-of-town defendants charged with carrying a gun at one of Queens’ airports. It’s a relatively common occurrence among tourists ignorant of New York City’s strict gun laws and often results in a desk appearance ticket.
But Rikers inmates did not have the affidavit option until the coronavirus hit. DiBiase said she is motivated to move defendants out of the city jails — where at least 371 inmates and 1,279 DOC staff have tested positive for COVID-19, according to city data — by resolving cases that resulted in parole holds or pretrial incarceration on low-level offenses.
DiBiase created an affidavit template for defense attorneys to complete and defendants to sign. Some attorneys told the Eagle that DiBiase is too much of a stickler. She said the documents have to “meet statutory requirements.”
The affidavit effort has taken coordination between the Queens District Attorney’s Office, the defense bar and the court, DiBiase said. The DA’s Office did not respond to a request for more information.
Queens Defenders Executive Director Lori Zeno said many of her organization’s clients have been willing to take pleas by affidavit in order to get out of jail amid the spread of the coronavirus. She complimented DiBiase for putting those cases on the calendar within a day.
Despite the efforts of DiBiase and the court staff, the affidavit procedure can still be complicated, however, said Queens Defenders Supervising Attorney Lisa Saltzman.
Defense attorneys are often forced to contact jail counselors, corrections officers or captains and ask them to get the inmate to sign the form and ensure that it is notarized at the facility, Saltzman said.
“We have to literally beg them, ask them for favors,” she said.
Attorneys also have a hard time reaching their clients by phone to make sure they even want to enter a plea in the first place. The complications delay the process and jeopardize inmates’ health, she added.
“Every second, every minute is another minute of danger to our clients,” Saltzman said.
