district attorney

Even before the pandemic struck New York, the Genesee County District Attorney's office was hit hard, according to DA Lawrence Friedman, by new discovery rules that greatly increased the workload of attorneys in his office, he said.

Now, his office is faced with the daunting task of catching up on a backlog of cases at a time when courts are scheduling defendant appearances further apart.

In order to maintain social distancing in courtrooms, courts are putting a time buffer between cases, which impacts the workflow and increases the time an attorney can be tied up in court, Friedman said.

"The same thing is going on in every court in the county," Friedman said. "We can't even imagine what that is going to do as far as our time commitments. We're concerned."

When the pandemic hit, Friedman's office was in the process of hiring a seventh full-time attorney to help with the prosecution load but before a new person could be brought on board, the county initiated a hiring freeze.

The hiring freeze remains in place but yesterday, Friedman asked county legislators at the Public Service Committee meeting to lift that freeze for this one position in his office.

"We're well aware of the financial difficulties faced by the county but the same pandemic that created the financial problem has only increased our need for the position," Friedman said.

Before the hiring freeze, Friedman did hire two new paralegals, authorized in this year's budget, to help with the workload mandated by the new discovery rules (under the new rules, there is more material to review and turn over to defendants in a shorter period of time).

"This is not a position we can just fill immediately," Friedman said. "We need a month to get the word out and collect resumes, schedule interviews, and make a job offer. Generally, attorneys like to give four weeks' notice. So it could be a couple of months, at best, before we're able to hire someone."

Only Friedman and First Assistant District Attorney Kevin Finnell have more than 14 months of experience in the DA's office and Friedman will retire at the end of 2021.

The workload in the office is also increasing because state troopers will start wearing body cams, which will mean more evidence to review in some cases, and the repeal of Public Service Law 50-a, which used to keep police disciplinary records confidential, has also made the discovery process more burdensome. 

"Our obligation is to make sure that information is disclosed to the defense," Friedman said.

The public defender's office, Friedman noted, also has six attorneys handling criminal cases but the office, Friedman said, handles only "a fraction" of the cases the DA's office handles. Since defendants might hire a private attorney or received assigned counsel, the Public Defenders Office doesn't handle every single criminal case in the county, which the DA's office does.

There are also state grants available to help cover the public defenders' budget, Friedman noted.

Friedman also noted that new City Court Judge Durin Rogers is "more demanding" and takes up more time on cases, and Town of Batavia Supervisor Greg Post has also asked for more DA time in the Town of Batavia Court.

No committee member offered any comment on Friedman's request nor is there an indication on when the legislature might consider it further.

This morning we're talking with District Attorney Lawrence Friedman about how social distancing and quarantines are affecting the justice system.

UPDATE: This is a reposted recording of the live stream interview to fix a dropped signal at the beginning of the interview.

As technology changes, as society changes, the workload for individual assistant district attorneys in Genesee County continues to grow, District Attorney Lawrence Friedman told members of the County Legislature on Monday during the Public Service Committee meeting.

Friedman was joined by First Assistant DA Melissa Cianfrini to make the case for adding a new ADA position to their staff in 2019.

In 21 years as DA, Friedman said he's never asked for additional DA staff, but it's starting to become impossible for ADAs to juggle town courts, county court, case preparation, and specialty courts.

"Assistant district attorneys have been coming to me and saying there is too much going on and I acknowledge there is," Friedman said. "We’ve held off as long as we can but we need help."

On the technology front, evidence to review now includes police body-worn cameras, video surveillance -- not just from the city but from private homeowners and business owners, recorded inmate calls from the jail, and recorded stationhouse felony-case interviews.

That substantially increases the amount of time an ADA works on many cases.

"The thing is, it's time-consuming," Friedman said, speaking specifically about body-worn camera video. "We have to review all that video. When we’re lucky it can be a matter of minutes, but it’s not unusual to have literally hours of video because the police officers are doing their job and they’re running the cameras."

All the video related to a particular incident may include the hours that an officer is just working on his paperwork but every minute must be reviewed.

"The thing is, we can’t take the chance," Friedman said. "We’re turning this over to the defense. We need to know what’s on there. It’s a huge time drain."

Even the most seemingly mundane video minutes though can turn out to be valuable, Cianfrini said.

"We’ve saved statements because the police didn’t recognize, maybe, that was a statement that should have been noticed or it was a statement that was not made because of questioning, so reviewing body-worn cameras are fruitful and something that we can’t just skip doing," Cianfrini said.

Both Friedman and Cianfrini noted they are not complaining about new avenues for evidence, just noting how they change the nature of the job.

"All of these technological advances are positive things overall but they’re very time consuming," Friedman said.

The caseload for ADAs is also no longer limited to just town and county courts, what Friedman and Cianfrini referred to as justice courts. Many cases are now often referred to specialty courts, such as drug court, veterans court, mental health court, family court, and integrated domestic violence court.

Cases referred to those courts often last longer and involve more dedicated time.

For example, a specialty court case might include regular meetings with the ADA, defense, the judge, counselors, and others to discuss progress on each individual case and how the court should proceed that the defendant's next appearance. 

The time spent on specialty courts also means there are fewer ADAs available to cover a town court when another ADA is tied up on a felony trial in County Court.

"It's getting to point where don’t have enough bodies to cover the courts we have," Cianfrini said "If I’m trying a felony case, we have a hard time finding the bodies to cover form me in my other courts while I’m trying a felony case in County Court and vise versa for everybody in the office."

The way laws and crime both have changed also takes up more time for ADAs.

Take DWI for example -- stricter punishments, whether it's losing a license through a criminal proceeding for life or getting a five-year suspension through the DMV on a DWI conviction, encourage more defendants to take cases to trial rather than settle for a plea agreement.

“So we’re having a lot more DWI trials, across the board, misdemeanors and felonies," Cianfrini said.

Even shoplifting ain't what it used to be. Crime rings make shoplifting cases, usually at the big-box stores on Veterans Memorial Drive, are more complex and more time-consuming.

“It’s not just the shoplifters who go in and swipe a mascara or a T-shirt," Cianfrini said. "These are organized shoplifting rings that come in and take thousands of dollars at one time. They have complex teams that they use to try and avoid detection. I just had a trial plead out today where three people stole over $3,000 worth of merchandise. They stole 12 Sonic Care toothbrushes and a ton of Nike apparel because that has a high retail value in the pawnshops and in the black market."

There's also been a lot of turnover the past three years in both the Sheriff's Office and Batavia PD. Friedman stressed all the new officers are outstanding individuals but they still, like anybody in a new, complex job, have things to learn. That means more time working with officers in the field for ADAs, such as Cianfrini.

"I get more calls because they want to do the right thing," Cianfrini said. "Those calls now take longer. Calls that were under five minutes now take longer. Sometimes I have to get up and do research in the middle of the night make sure they're accurate in what they’re telling me and that I’m getting them the best advice because it’s their first time dealing with a situation."

One of Friedman's ADAs is retiring at the end of the summer, which means replacing an experienced attorney with a new attorney who will also take time to train. He's warned the candidates that being an ADA isn't just a 9-to-5, weekends-free type of job.

"We were just explaining to a job candidate on Saturday, during an interview, you are expected to be in the office or in court between regular business hours, 8:30 to 5," Friedman said. "Then you’re going to be in justice courts in the evening, and you’re on call 24-7. That’s what these jobs are.  Nobody in our office only works 37.5 hours a week. Not even close."

Friedman announced his intention to step down after this term in a press release today about a swearing-in ceremony Thursday afternoon for himself and his staff.

At the ceremony, Melissa Cianfrini will be sworn in as first assistant district attorney. The position didn't exist for a couple of years before the County Legislature agreed to fund the position for 2018.

Besides Friedman and Cianfrini, also taking the oath will be assistants Robert Zickl, Kevin Finnell, and Shirley Gorman.

Friedman was reelected to his sixth four-year term in November.

Administering the oath will be County Clerk Michael Cianfrini, husband of Melissa Cianfrini.

The ceremony is at 1:30 p.m. in the County Courtroom.

Photo: File photo.

For the first time Monday, District Attorney Lawrence Friedman spoke at length publicly about the Governor's Office mandated pay raise for county district attorneys and made his case that the County Legislature should pass the resolution boosting his pay.

"I would like to think that after myself, being a district attorney for 20 years and in the office for 35 years, that if it was not for the mandated salary, I would think that the district attorney salary would be at least as much as the salary being paid to the new county attorney," Friedman said. 

The statewide fight over DA salaries arose, Friedman said, because members of the legislature didn't want to give county judges raises without giving themselves raises, and if judges didn't get raises, then neither did DAs.

That went on for 13 years before Gov. Andrew Cuomo appointed a commission to recommend a new salary structure.

The county benefitted all those years that there were no mandated raises, Friedman said.

Furthermore, even with the raises, the county is paying less for the DA than the county attorney because the state picks up $72,000 of the DA's salary.

Under the mandate, Friedman's salary will go from $152,500 to $183,350 and then up another $10,000 in April 2018.

Legislators, such as Mike Davis, said they have no problem with the job Friedman is doing, but they object to the mandate and Davis expressed concern that the salary is out of line with rural expenses.

Friedman said that one reason the wage increase is being pursued at a state level is that it was getting harder to retain DAs in their jobs, with many opting for higher paying county court judge positions.

The committee voted to advance the pay raise resolution on a unanimous vote.

"The ramifications of not doing this, however, would impact our budget even worse because we would not have the benefit of the New York State supplement for the DA's salary that we're getting now, so we would end up paying even more," said Committee Chair Marianne Clattenburg. "We are supposed to be a country of laws and whether we like this or not, this is a law and this is the Public Service Committee, so I vote to follow the law."

Moments after being told on Monday by County Manager Jay Gsell that a pay raise for the district attorney is being mandated by the state and the County Legislature really had no say in the matter, members of the Public Service Committee decided to say nothing at all.

No member of the committee spoke up to make a motion to approve the mandated pay raises, so there was no second to a motion, and without a motion or second, there could be no discussion.

Afterward, Chairman Ray Cinanfrini, who was in the room, but is not a member of the commitee, was totally surprised that the committee acted as it did.

He said there was no prior discussion that gave him a clue there would simply be no action on the matter.

Not that he was disappointed.

"I'm not in favor of the way it was handled by the governor's office," Cianfrini said. "This is no reflection whatsoever on our district attorney and the services provided by his office. They do a great job. It's just that we had no control over the  whole process."

A committee appointed by Gov. Andrew Cuomo recommended that salaries for district attorneys throughout the state be pegged to the salary structure of Supreme Court justices, which are pegged to the salary rates of federal judges.

Under the mandate, the district attorney pay would hit $193,000 annually in April 2018, or 95 percent of a Supreme Court justice's salary in that year.

Last year, Friedman, who hadn't received a pay raise in about eight years, was paid $152,500. The governor's plan would give Friedman an immediate boost to $183,350.

The lack of action by the Legislature really puts the ball in Friedman's court, Cianfrini said. 

"Certainly, as the law stands right now, our district attorney is entitled to the money," Cianfrini said. "The fact that we did not take action on it today, I think, puts a lot of pressure on us on how we can justify the decision of the Public Service Committee."

County Attorney Charles Zambito agreed that it is probably up to Friedman to decide how to proceed.  

Friedman declined to share specific thoughts on the pay issue.

"While I certainly have some very strong feelings about this issue, rather than making statements to the media at this time, I will begin by promptly addressing it with the County Legislature," Friedman said.

If push comes to shove, he and Gsell said, the Legislature could vote to make the district attorney's job part time. That would get the county out from under the state mandate.

Up until the early 1990s, the job, along with all the assistant jobs, were part-time. Just prior to Friedman's election to DA, the legislature voted to make the job full-time, so Friedman is the only full-time DA in the county's history.