Criminal Justice Insider

On January 1, 2022, Alvin Bragg became the first African American to be sworn in as the District Attorney for New York County. He kicked off his ground-breaking tenure by announcing a series of dramatic changes which affect all aspects of criminal justice in Manhattan.

In a memo, dated January 3, 2022, Bragg announced a series of sweeping new policies which radically changes the types of crimes which will be prosecuted and what kinds of sentences may be sought. Pursuant to the new policy, the New York County District Attorney’s will no longer prosecute the following crimes unless there is an accompanying felony count:

• Misdemeanor marijuana offenses pursuant to Penal Law Sec. 222.30 and 222.50;
• Theft of bus or subway fare as a theft of services pursuant to Penal Law Sec. 165.13;
• Trespass (unless accompanied by Stalking in the Fourth Degree (PL Sec. 120.45);
• Prostitution (and supervisory approval is required for patronizing a prostitute pursuant to Penal Law Sec. 230.04.

Further, all misdemeanor charges for which a desk appearance ticket is required shall be offered the opportunity to complete programming through a community-based provider. If the defendant accepts the opportunity, they will not need to appear in court, and the prosecutor will decline to prosecute the case upon the completion of programming.

Changes to Charging Procedure

The New York County District Attorney’s Office will no longer charge robbery (PL Sec. 160) where a dangerous weapon was displayed but did not create the risk of genuine physical harm. Instead, the office will charge petit larceny pursuant to Penal Law Sec. 155.25, an A misdemeanor. Acts involving residential burglaries which involve theft of property from a storage area or other non-dwelling areas of a home will be charged as a Burglary in the Third Degree, a lower level D felony. Drug cases where the seller is a “low-level agent” will be charged as Criminal Possession of a Controlled Substance, an A misdemeanor and the defendant will be given the opportunity to complete programming rather than face prosecution.

Changes to Pretrial Incarceration

The New York County’s District Attorney will also no longer seek pretrial incarceration except in homicide or other cases resulting in death, Class B violent felonies involving a weapon which caused serious injury, sex offenses, domestic violence felonies, public corruption, rackets or major economic crimes. Even when a defendant misses a court appearance, a prosecutor must confer with defense counsel. If it is evident that the missed court date was the result of anything other than attempting to flee from law enforcement, the prosecutor will recommend release on the original conditions.

Changes to Post-Conviction Incarceration

Finally, and most importantly, the New York County DA’s office will only seek incarceration in the following cases:

• Homicide or other cases resulting in death;
• Class B violent felonies involving a weapon which has caused serious injury,
• Sex offenses;
• Domestic violence felonies;
• Public corruption;
• Racketeering; or
• Major economic crimes.

This marks a substantial change in office policy and exempts substantial categories of crimes from incarceration. We note that just because a prosecutor does not seek incarceration does not mean a judge cannot sentence a defendant to incarceration. However, the sentencing recommendations of the prosecutor do carry substantial weight.

Further, the memo also limits the types of sentences the New York County District Attorney’s Office will seek. Where the crime calls for a determinate sentence (a sentence of fixed length generally reserved for violent offenses), the prosecutors may not seek a sentence of greater than 20 years. Where the sentence is indeterminate, but the maximum sentence is less than life, the prosecutors may not seek a sentence greater than 20 years. Where the sentence is indeterminate and carries a maximum penalty of life in prison, the prosecutors may only seek a minimum of 20 years. Finally, the prosecutors may no longer seek life without parole.

Changes to Non-Citizen Prosecution

With regard to non-citizens, prosecutors are directed to seek dispositions that avoid immigration consequences for all misdemeanors and non-carceral felonies.

Policy Limited to Manhattan

This new policy marks a dramatic shift in prosecutorial priorities that affects every stage of criminal justice in Manhattan from arraignment to plea negotiation to sentencing. Prosecutors in New York County may no longer use the threat of incarceration to influence plea negotiations in low-level crimes. A strong emphasis is being placed on programming and community services rather than incarceration.

We note that these policies only apply in Manhattan. To date, no other borough has instituted such sweeping reform. This policy also creates the somewhat odd outcome that one can be incarcerated for a crime in Brooklyn or the Bronx, but reach a different result if the crime is committed and charged in Manhattan.

For more information on the topic discussed, contact:

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