Criminal Justice Insider

The inception of the new year, 2020, means a fresh new start. It also means that, as of January 1, 2020, sweeping reforms with regard to criminal procedure in New York State take effect. New legislation introduced in April of 2019 changed numerous aspects of pre-trial practice in state criminal cases. The changes are so intensive, several blog posts are required to cover them in their entirety. Highlighted here are some of the most significant and impactful changes now in force in New York State.

The most widely publicized and controversial of the changes surrounds bail reform and pretrial detention. Under the prior iteration of New York Criminal Procedure Law (“CPL”) §510.10, a law enforcement officer could arrest a defendant and detain them on any charge until arraignment. Now, under the new rules, an arresting officer must issue a desk appearance ticket, whereby the accused is released, and given a date to return to court, except in felony arrests, certain sex offenses, or crimes of violence where an order of protection is warranted. No longer can a defendant be held overnight pending arraignment for most minor offenses.

More significantly, CPL §510.10 formerly contained three options for dealing with a defendant at arraignment: (1) monetary bail; (2) the release of the defendant on their own recognizance; or (3) remanding the defendant to custody. The new laws require that all persons charged with misdemeanors, non-violent felonies, robbery in the second degree (PL §160.10) or burglary in the second degree (PL §140.25) be released on their own recognizance or with non-monetary bail. Notably, certain misdemeanor sex offenses and contempt of an order of protection in a domestic violence case are eligible for cash bail, but the court must set bail, and cannot simply remand a defendant.

This sea-change to the rules surrounding pre-trial confinement has some people protesting that dangerous offenders will be released immediately back on the street through the “revolving door” of the criminal justice system while others celebrate that no longer will the economically disadvantaged be held for lengthy periods pending trial due to an inability to make bail for minor offenses. Whether this new statute will have either effect remains to be seen.

Further significant alterations were made to the pre-trial discovery process. Under the former rules, codified in CPL Article 240, discovery in a criminal case occurred only on demand by defense counsel, and was limited to certain categories of information. Those categories, set forth in CPL §220, included the defendant’s statements, grand jury testimony of a co-defendant, physical and scientific testing, and photographs.

The new laws, set forth in CPL Article 245, make discovery in criminal cases automatic. The prosecutor must, without demand, turn over all items and information that relate to the subject matter of a case with a presumption of openness and disclosure. This material must be turned over within fifteen days of arraignment, with an automatic thirty-day extension for voluminous discovery. In order to comply with deadlines mandating a speedy trial and proceed to trial, a prosecutor must file a certificate a compliance with the court indicating they have produced all requisite discovery.

Moreover, the categories of discoverable material has vastly expanded. The list of what Prosecutors now must turn over, includes, in part, all statements by defendants or co-defendants to law enforcement, all grand jury testimony by witnesses, names and contact information for all witnesses (and not just testifying witnesses), certain expert information, a complete record of conviction for all prosecution witnesses, and electronic discovery, including images of a defendant’s devices and relevant communications.

This vast trove of information must be turned over three days before a plea deadline for a felony charge expires or seven days before a plea deadline for a misdemeanor charge expires. If a defendant rejects a plea, and a violation of the discovery rules is discovered, it is now a presumptive minimum sanction that the court reinstate the plea offer and preclude the prosecutors from offering the undisclosed evidence at trial.

This discussion covers only some of the vast changes to pre-trial criminal procedure in New York State. There are numerous other changes in the areas of speedy trial, non-cash bail, crime scene access, and employment discrimination for people with an open adjournment in contemplation of dismissal. We intend to discuss these changes, as well as the impact of the new law, in future blog posts. It is going to be a busy and tumultuous 2020 for criminal justice in New York State.

For more information on the topic discussed, contact:

• Adam M. Felsenstein  |  felsenstein@thsh.com  |  212-508-7533